Untitled Texas Attorney General Opinion ( 2012 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
May 21,2012
Mr. Robert Scott Opinion No. GA-0936
Commissioner of Education
Texas Education Agency Re: Whether non-attorneys may represent parties at
1701 North Congress Avenue special education due process hearings conducted by
Austin, Texas 78701-1494 the Texas Education Agency (RQ-I021-GA)
Dear Mr. Scott:
You ask about the authority of non-attorneys to represent parties at special education due
process hearings. 1 The special education due process hearings about which you ask are required by
the Federal Individuals with Disabilities Education Act (IDEA). The IDEA regulates the states'
provision of special education to students with disabilities. See generally 20 U.S.C.A. § § 1400-1482
(West 2010 & Supp. 2011). In order to receive federal funds, Texas must agree to comply with the
IDEA's extensive procedures. See id. § 1412(a)(1)(A)(West 201Q)(providing that a state is eligible
for federal funding assistance if the state submits a plan assuring that the state complies with the
IDEA provisions); see also TEX. EDUC. CODE ANN. § 29.001 (West Supp. 2011) (requiring
development of a statewide plan consistent with federal law). The IDEA allows any party to present
a complaint "with respect to any matter relating to the identification, evaluation, or educational
placement of the child, or the provision of a free appropriate public education to such child."
20 U.S.c.A. § 1415(b)(6)(A) (West 2010), 34 C.F.R. § 300.507(a) (2012). The parents or local
education agency may seek to resolve such complaints through an impartial due process hearing.
See 20 U.S.c.A. § 1415(f)(l)(A) (West 2010); 34 C.F.R. § 300.511(a) (2012). In the due process
hearing the parties have a right to "[b]e accompanied and advised by counsel and by individuals with
special knowledge or training with respect to the problems of children with disabilities, except that
whether parties have a right to be represented by non-attorneys at due process hearings is determined
under State law." 34 c.F.R. § 300.512(a)(1) (2012); see also 20 U.S.C.A. § 1415(h)(1) (West 2010).
It is this language concerning the right to be represented by a non-attorney as determined by state law
that prompts your questions. 2 Specifically, you ask:
ISee Letter from Robert Scott, Comm'r of Educ., Tex. Educ. Agency, to Honorable Greg Abbott, Tex. Att'y
Gen. at 1 (Nov. 21, 2011), http://www.texasattorneygeneral.gov/opin ("Request Letter").
2As you ask about only non-attorney representation, we limit our opinion accordingly.
Mr. Robert Scott - Page 2 (GA-0936)
Whether non-attorney representation at special education due process
hearings constitutes the unauthorized practice of law?
Whether [the] answer to question number 1 would change if TEA
[Texas Education Agency] had a specific rule allowing non-attorney
representation at special education due process hearings?
Whether TEA has the authority to adopt a rule allowing or prohibiting
non-attorney representation at special education due process
hearings?
Request Letter at 3 (footnote omitted).
Texas law generally limits the practice of law 3 to licensed attorneys. See TEX. GOy'T CODE
ANN. § 81.1 02( a) (West 2005) (providing that a person may not practice law unless the person is a
member of the state bar). The Legislature, however, has indicated that it knows how to enact
provisions that function as exclusions to this requirement. There are several instances in Texas
statutes where the Legislature expressly allows a person who is not an attorney to act on behalf of
another in a legal proceeding. See TEX. PROP. CODE ANN. § 24.011 (West 2000) (authorizing a party
to be represented by their authorized agents, who need not be attorneys, in forcible entry and detainer
actions); TEX. LAB. CODE ANN. § 410.006 (West 2006) (authorizing a claimant in administrative
proceedings under the Texas Workers' Compensation Act to be assisted by an individual of the
claimant's choice); TEX. GOy'T CODE ANN. § § 2003.101 (k) (West 2008) (authorizing persons other
than attorney to represent a party in contested cases concerning certain tax matters), 2003.911(a)
(West Supp. 2011) (authorizing non-attorney to represent a party at an appeal of certain appraisal
review board decisions). The Legislature has not enacted a similar provision in the context of a
special education due process hearing. See generally TEX. EDUC. CODE ANN. §§ 29.001-.018 (West
2006 & Supp. 2011) (subchapter A, pertaining to special education program). Absent a specific
provision to the contrary, we believe the state's general prohibition against the practice of law by
non-attorneys applies to the due process hearings about which you ask. See Tex. Att'y Gen. Op. No.
GA-0909 (2012) at 2 (citing FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 884-85
(Tex. 2000) (relying on principle of statutory construction that the Legislature knows how to enact
laws effectuating its intent)). We thus conclude that a non-attorney may not practice law at a special
education due process hearing.
3The practice of law is defined by statute as
the preparation of a pleading or other document incident to an action or special
proceeding or the management of the action or proceeding on behalf of a client
before a judge in court as well as a service rendered out of court, including the
giving of advice or the rendering of any service requiring the use of legal skill or
knowledge, such as preparing a will, contract, or other instrument, the legal effect
of which under the facts and conclusions involved must be carefully determined.
TEx. GOV'T CODE ANN. § 81.101(a) (West 2005).
Mr. Robert Scott - Page 3 (GA-0936)
However, this office has consistently opined that the question of whether certain conduct
constitutes the practice oflaw will depend on the facts. Tex. Att'y Gen. LO-97-104, at 1-2 (stating
that "the determination whether certain conduct constitutes the practice of law will depend upon the
facts"); see Tex. Att'y Gen. Op. Nos. JM-451 (1986) at 2, H-974 (1977) at 2, Tex. Att'y Gen.
LO-98-005, at 2. We cannot conclusively determine whether particular conduct constitutes the
practice of law. See Tex. Att'y Gen. LO-97-104, at 1-2. Thus, we cannot determine in an attorney
general opinion whether particular conduct of an individual who is not an attorney at a special
education due process hearing is proscribed by subsection 81.102(a).
Because your remaining questions both involve a potential TEA rule, we address them
together. As an administrative agency, the TEA has no inherent authority and can adopt only those
rules that are authorized by and consistent with its statutory authority. See Pruett v. Harris Cnty.
Bail Bond Bd., 249 S.W.3d 447,452 (Tex. 2008). The determinative factor regarding whether an
agency exceeds its authority is whether the rule is in harmony with the general objectives of the
statute. See id.
The TEA is expressly authorized to develop and modify a statewide plan for "the delivery
of services to children with disabilities in this state that include rules for the administration ... of
the special education program." TEX. EDUC. CODE ANN. § 29.001 (West Supp. 2011). Considering
one of the purposes of the IDEA is to ensure that in providing a free appropriate public education,
the rights of children with disabilities and parents of such children are protected, a rule that made
the due process hearing more accessible to the parents of students with disabilities is likely in
harmony with TEA's statutory authority. See 20 U.S.C.A. § 1400(d)(1)(A-B) (West 2010)
(enumerating purposes of IDEA); see also 19 TEX. ADMIN. CODE. § 89.1150(b) (2012) (Tex. Educ.
Agency, General Provisions) (encouraging resolution of disputes "at the lowest level possible and
in a prompt, efficient, and effective manner"). Accordingly, we believe that TEA has authority to
adopt rules governing the representation of a party at a special education due process hearing.
However, in the event a TEA rule allows a non-attorney to engage in conduct that constitutes the
practice of law, a court reviewing the rule would have a basis on which to determine the rule is
invalid due to a conflict with subsection 81.101(a).4 See State v. Jackson, 376 S.W.2d 341, 345
(Tex. 1964) (stating that "[t]he rulemaking power of administrative agencies does not permit the
enactment of regulations which are inconsistent with the expression of the lawmakers' intent in
statutes other than those under which the regulations are issued") (emphasis added).
4The judiciary has inherent power to regulate the practice of law. See State Bar of Tex. v. Gomez, 891 S.W.2d
243, 245 (Tex. 1994) ("Because the admission and practice of Texas attorneys is inextricably intertwined with the
administration of justice, the Court must have the power to regulate these activities in order to fulfill its constitutional
role.") . And the judiciary' S inherent power is not limited by subsection 81.101(a). See In re Nolo Press/Folk Law, Inc.,
991 S.W.2d 768, 770 n.8 (Tex. 1999) (recognizing that legislative definition of the practice of law acts in the aid of the
judiciary and not to the exclusion of, nor in denial of, the constitutional powers of the judicial branch); see also Tex.
Att'y Gen. Op. Nos. GA-0381 (2005) at 3 (noting that the definition in subsection 81.101 (a) is not exclusive), JM-451
(1986) at 2 ("The judiciary, however, has inherent power to determine what is the practice oflaw on a case by case basis,
unconfined by statute.").
Mr. Robert Scott - Page 4 (GA-0936)
SUMMARY
Pursuant to subsection 81.102(a) of the Government Code, a
non-attorney may not practice law at a special education due process
hearing. However, we cannot determine whether particular conduct
of an individual who is not an attorney at a special education due
process hearing constitutes the practice of law.
The Texas Education Agency has authority to adopt rules
governing the representation of a party at a special education due
process hearing. To the extent a TEA rule allows a non-attorney to
engage in conduct that constitutes the practice of law, a court
reviewing the rule would have a basis on which to determine the rule
is invalid.
DANIEL T. HODGE
First Assistant Attorney General
JAMES D. BLACKLOCK
Deputy Attorney General for Legal Counsel
JASON BOATRIGHT
Chair, Opinion Committee
Charlotte M. Harper
Assistant Attorney General, Opinion Committee