| (a) License required. An individual who is certified
as an independent hearing examiner must be licensed to practice law
in the State of Texas.
(b) Representations prohibited. An independent hearing
examiner, and the law firm with which the independent hearing examiner
is associated, must not serve as an agent or representative of:
(1) a school district;
(2) a teacher in any dispute with a school district;
or
(3) an organization of school employees, school administrators,
or school boards.
(c) Moral character and criminal history. An independent
hearing examiner must:
(1) possess good moral character; and
(2) as demonstrated by a criminal history report process
required by the commissioner of education, not have been convicted,
given probation (whether through deferred adjudication or otherwise),
or fined for:
(A) a felony;
(B) a crime of moral turpitude; or
(C) a crime that directly relates to the duties of
an independent hearing examiner in a public school setting.
(d) Status as a licensed attorney. An independent hearing
examiner must:
(1) currently be a member in good standing of the State
Bar of Texas;
(2) within the last five years, not have had the independent
hearing examiner's bar license:
(A) reprimanded, either privately or publicly;
(B) suspended, either probated or otherwise; or
(C) revoked;
(3) have been licensed to practice law in the State
of Texas or any other state for at least five years prior to application;
and
(4) have engaged in the actual practice of law on a
full-time basis, as defined by the Texas Board of Legal Specialization,
for at least five years.
(e) Experience. During the three years immediately
preceding certification, an independent hearing examiner must have
devoted a minimum of 50% of the examiner's time practicing law in
some combination of the following areas, with a total of at least
one-tenth or 10% of the independent hearing examiner's practice involving
substantial responsibility for taking part in a contested evidentiary
proceeding convened pursuant to law in which the independent hearing
examiner personally propounded and/or defended against questions put
to a witness under oath while serving as an advocate, a hearing officer,
or a presiding judicial officer:
(1) civil litigation;
(2) administrative law;
(3) school law; or
(4) labor law.
(f) Continuing education. During each year of certification,
an independent hearing examiner must receive credit for ten hours
of continuing legal education, with three hours in the area of school
law and seven hours in the area of civil trial advocacy and legal
writing skills, which must include any combination of course work
in evidence, civil procedure, and legal writing skills, during the
period January 1 to December 31 of each year of certification.
(g) Sworn application. In order to be certified as
an independent hearing examiner, an applicant must submit a sworn
application to the commissioner of education. The application shall
contain the following acknowledgments, waivers, and releases.
(1) The applicant agrees to authorize appropriate institutions
to furnish relevant documents and information necessary in the investigation
of the application, including information regarding grievances maintained
by the State Bar of Texas.
(2) If selected as an independent hearing examiner,
the applicant has the continuing duty to disclose grievance matters
under subsection (d)(2) of this section at any time during the certification
period. Failure to report these matters constitutes grounds for rejecting
an application or removal as an independent hearing examiner.
(3) If selected as an independent hearing examiner,
the applicant has the continuing duty to disclose criminal matters
under subsection (d)(2) of this section at any time during the certification
period. Failure to report these matters constitutes grounds for rejecting
an application or removal as an independent hearing examiner.
(h) Assurances as to position requirements. In the
sworn application, the applicant must:
(1) demonstrate that the applicant currently maintains
an office or offices within the State of Texas;
(2) designate the office locations from which the applicant
will accept appointments;
(3) demonstrate that the applicant provides telephone
messaging and facsimile services during regular business hours;
(4) agree to attend meetings of independent hearing
examiners in Austin, Texas, at the examiner's expense; and
(5) agree to comply with all reporting and procedural
requirements established by the commissioner.
(i) Voluntary evaluations. The commissioner may solicit
voluntary evaluations from parties to a case regarding their observations
of the independent hearings process.
(j) Insufficient examiners in a region. In the event
that insufficient numbers of independent hearing examiners are certified
for any geographic region of the state, the commissioner may assign
an independent hearing examiner whose office is within reasonable
proximity to the school district.
(k) Annual recertification.
(1) Certification expires on December 31 of each calendar
year. All independent hearing examiners seeking recertification shall
reapply on a date specified by the commissioner. Certification as
a hearing examiner is effective on a yearly basis only and does not
confer any expectation of recertification in subsequent years.
(2) The commissioner, in his discretion, after providing
notice and an opportunity to respond, may decline to recertify an
independent hearing examiner, if the commissioner determines that
the independent hearing examiner has failed to perform the duties
of an independent hearing examiner in a competent manner. The commissioner
may consider, but is not limited to, the following factors:
(A) timeliness;
(B) accuracy and appropriateness of procedural and
evidentiary rulings;
(C) decorum or control; or
(D) application of appropriate legal standards.
(3) The commissioner's decision in regard to recertification
is final and not appealable.
(l) Action against certification. The commissioner,
after providing notice and an opportunity to respond, may take action
against the certificate of an independent hearing examiner if it is
determined that the independent hearing examiner or the law firm with
which the independent hearing examiner is associated, during the time
the independent hearing examiner has been certified, has:
(1) served as an agent or representative of a school
district;
(2) served as an agent or representative of a teacher
in any dispute with a school district;
(3) served as an agent or representative of an organization
of school employees, school administrators, or school boards; or
(4) failed to timely issue a recommendation.
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| Source Note: The provisions of this §157.41 adopted to be effective December 15, 1995, 20 TexReg 9695; amended to be effective September 1, 1997, 22 TexReg 7035; amended to be effective September 1, 1998, 23 TexReg 7783; amended to be effective April 27, 2008, 33 TexReg 3264; amended to be effective March 7, 2012, 37 TexReg 1513; amended to be effective August 27, 2018, 43 TexReg 1854; amended to be effective October 21, 2019, 44 TexReg 6030 |
