Untitled Texas Attorney General Opinion
GA-0936
| Tex. Att'y Gen. | Jul 2, 2012Background
- This opinion answers whether non-attorneys may represent parties at Texas Education Agency special education due process hearings under IDEA requirements.
- IDEA requires hearings with rights to be accompanied by counsel or others with relevant knowledge, with state-law determines non-attorney representation.
- Texas generally prohibits the practice of law by non-attorneys (subsection 81.102(a) of the Government Code).
- There is no Texas statute authorizing non-attorney representation in special ed due process hearings.
- TEA may adopt rules governing representation, provided they align with statutory authority and do not contravene broader legal principles.
- The opinion concludes non-attorneys may not practice law at these hearings, but TEA may adopt rules on representation that, if involving the practice of law, could be invalid if inconsistent with law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether non-attorney representation at due process hearings constitutes the practice of law. | Hodge argues non-attorneys may perform allowed representations. | Texas law generally prohibits non-attorneys from practicing law. | Non-attorney representation is not allowed to practice law at the hearing. |
| Whether TEA may adopt a rule governing representation at these hearings. | TEA could adopt a rule to facilitate representation. | Agency must stay within statutory authority. | TEA has authority to adopt rules governing representation at hearings. |
| Whether TEA rules allowing non-attorneys would be invalid if they permit practicing law. | N/A | Such rules could conflict with 81.102(a) if they permit the practice of law by non-attorneys. | If a TEA rule permits the practice of law by non-attorneys, it could be invalid. |
| How the judiciary's power interacts with agency rulemaking on this issue. | N/A | Judiciary can regulate practice of law; agency rules must harmonize with statutes. | Judicial power remains to regulate practice of law; agency rules must align with legislative intent. |
Key Cases Cited
- FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868 (Tex. 2000) (statutory construction and agency authority principles; legislature's intent controls)
- State v. Jackson, 376 S.W.2d 341 (Tex. 1964) (agency rulemaking cannot contravene legislative intent)
- In re Nolo Press/Folk Law, Inc., 991 S.W.2d 768 (Tex. 1999) (judicial power to regulate practice of law on a case-by-case basis)
- State Bar of Tex. v. Gomez, 891 S.W.2d 243 (Tex. 1994) (inherent power of judiciary to regulate the practice of law)