The Attorney General Provides Guidance Regarding Non-Attorneys at Special Education Due Process Hearings … Sort of


Posted 05/22/2012 by Ronn Garcia

On May 21, 2012, the Texas Attorney General (“AG”) released an opinion regarding whether non-attorneys may represent parties at special education due process hearings conducted by the Texas Education Agency.  See Tex. Att’y Gen. Op. No. GA-0936 (2012).

Generally, Texas law limits the practice of law to licensed attorneys. See Tex. Gov’t Code § 81.102(a).  The Individuals with Disabilities Education Act (“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. § 1415(b)(6)(A), 34 C.F.R. § 300.507(a). In due process hearings, 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); see also 20 U.S.C. § 1415(h)(1) (emphasis added).

In determining whether non-attorneys may represent parties at special education due process hearings, the AG reviewed Texas statutes and certain legal proceedings that specifically allow for legal representation by non-attorneys. In its analysis, the AG considered the absence of such a statute in the special education due process hearing context. See Op. No. GA-0936 (2012) (citing generally Tex. Educ. Code §§ 29.001-.018).  Relying on the principle of statutory construction, the AG opined that “the state’s general prohibition against the practice of law by non-attorneys applies to the due process hearings,” and concluded that “a non-attorney may not practice law at a special education due process hearing.”  The AG did not, however, determine whether “particular conduct of an individual” who is not an attorney at a special education due process hearing “constitutes the practice of law” under subsection 81.102(a) of the Texas Government Code.

While the AG clearly declared that non-attorneys may not practice law in a special education due process hearing, the AG provided no guidance as to what “the practice of law” is in such an arena.  This leaves some lingering questions.  Can a non-attorney come to a special education due process hearing as an advocate and not be engaged in the practice of law?  Will a court have to decide this issue? School districts may be “back to the drawing board” for now.    

For more information about this Opinion, please contact Ronn P. Garcia with the Underwood Law Firm, Public Education Section. 

This column is published for informational purposes only. It should not be construed as legal advice and is not intended to create an attorney client relationship. The views expressed are those of the author and do not necessarily reflect the views of the author’s law firm or its individual partners.

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