| (a) The Texas Education Agency (TEA) will maintain
a pool of impartial hearing officers to conduct due process hearings.
The TEA will assign cases to hearing officers who are private practice
attorneys based on an alphabetical rotation. The TEA will assign cases
to hearing officers who are employed by the State Office of Administrative
Hearings (SOAH) in accordance with the procedures specified in the
interagency contract between the TEA and SOAH. If, however, a request
for a hearing relates to the same student who was involved in another
hearing that was filed within the last 12 months, the TEA may assign
the recently filed hearing request to the same hearing officer who
presided over the previous hearing. In addition, the same hearing
officer may be assigned to hearings involving siblings that are filed
within 12 months of each other.
(b) If a hearing officer is also a mediator under §89.1193
of this title (relating to Special Education Mediation), that individual
will not be assigned as hearing officer if he or she is the mediator
in a pending mediation involving the same student who is the subject
of the hearing or was the mediator in a previous mediation involving
the student who is the subject of the hearing.
(c) A hearing officer must possess the knowledge and
abilities described in 34 Code of Federal Regulations, §300.511(c),
and must not be:
(1) an employee of the TEA or the public agency that
is involved in the education or care of the child who is the subject
of the hearing; or
(2) a person having a personal or professional interest
that conflicts with the person's objectivity in the hearing.
(d) A hearing officer is not an employee of the TEA
solely because the individual is paid by the TEA to serve as a hearing
officer.
(e) A hearing officer has the authority to administer
oaths; call and examine witnesses; rule on motions, including discovery
and dispositive motions; determine admissibility of evidence and amendments
to pleadings; maintain decorum; schedule and recess the proceedings
from day to day; and make any other orders as justice requires, including
the application of sanctions as necessary to maintain an orderly hearing
process.
(f) If a hearing officer is removed, dies, becomes
disabled, or withdraws from a hearing before the completion of duties,
the TEA will designate a substitute hearing officer to complete the
performance of duties without the necessity of repeating any previous
proceedings.
(g) A party to a hearing who has grounds to believe
that the assigned hearing officer cannot afford the party a fair and
impartial hearing due to bias, prejudice, or a conflict of interest
may file a written request with the assigned hearing officer asking
that the hearing officer recuse himself or herself from presiding
over the hearing. Any such written request must state the grounds
for the request and the facts upon which the request is based. Upon
receipt of a request, the assigned hearing officer must review the
request and determine the sufficiency of the grounds stated in the
request. The hearing officer then must prepare a written order concerning
the request and serve the order on the parties to the hearing within
three business days of receiving the request. If the hearing officer
finds that the grounds for recusal are insufficient, the TEA will
assign a second hearing officer to review the request. The second
hearing officer must rule on the request and serve a written order
on the parties to the hearing within three business days of receiving
the assignment. If the second hearing officer also determines that
the grounds for recusal are insufficient, the assigned hearing officer
will continue to preside over the hearing. If either the assigned
hearing officer or the second hearing officer finds that the grounds
for recusal are sufficient, the TEA will assign another hearing officer
to preside over the remainder of the proceedings in accordance with
the procedures in subsection (a) of this section.
|
| Source Note: The provisions of this §89.1170 adopted to be effective March 6, 2001, 26 TexReg 1837; amended to be effective November 28, 2012, 37 TexReg 9360; amended to be effective December 31, 2013, 38 TexReg 9552; amended to be effective December 2, 2015, 40 TexReg 8642; amended to be effective February 15, 2018, 43 TexReg 766 |
