Can a non-lawyer represent a parent at a special education due process hearing in Texas?

Plain-English summary

Robert Scott, then the Commissioner of Education, asked the Attorney General about who can represent parties at special education due process hearings. These hearings come from the federal Individuals with Disabilities Education Act (IDEA), which governs how states provide special education to students with disabilities. To get federal funds, Texas must follow IDEA's procedures, including letting any party file a complaint about a child's identification, evaluation, placement, or right to a free appropriate public education, and resolve it through an impartial due process hearing.

IDEA says parties at these hearings may be accompanied and advised by counsel and by individuals with special knowledge of children's disabilities, but it leaves to state law the separate question of whether parties have a right to be represented by non-attorneys. That gap in federal law is what prompted the Commissioner's three questions.

On the first question, the opinion started from the general Texas rule that only licensed attorneys may practice law. The Legislature knows how to carve out exceptions: it has expressly let non-attorneys act for others in eviction (forcible entry and detainer) cases, in workers' compensation proceedings, and in certain tax matters before administrative panels. It made no such exception for special education due process hearings. So the opinion concluded the general prohibition applies, and a non-attorney may not practice law at one of these hearings. It added an important caveat, though: the AG's office has long held that whether specific conduct amounts to the practice of law turns on the facts, so the opinion could not say which particular acts by a non-attorney would or would not cross that line.

The second and third questions, taken together, asked whether the Texas Education Agency could change the answer by adopting its own rule. The opinion explained that an agency has only the authority its statutes give it, and a rule is valid if it harmonizes with the statute's general objectives. TEA is authorized to develop a statewide plan with rules administering the special education program, and because one of IDEA's purposes is to protect the rights of children with disabilities and their parents, a rule making hearings more accessible to parents likely fits TEA's authority. So TEA has authority to adopt rules on representation. But the opinion warned that if a TEA rule allowed a non-attorney to engage in conduct that is the practice of law, a court could find the rule invalid for conflicting with the practice-of-law statute. A footnote also noted the judiciary's own inherent, statute-independent power to decide what counts as the practice of law.

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later Attorney General opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant for those who asked

The Texas Education Agency (as the opinion described it): The opinion told the Commissioner that a non-attorney may not practice law at a special education due process hearing, that whether particular conduct is the practice of law depends on the facts and could not be decided in the opinion, and that TEA has authority to adopt rules on representation, subject to invalidation if a rule lets a non-attorney practice law.

Parents of students with disabilities (as the opinion described it): The opinion recognized IDEA's purpose of protecting the rights of children with disabilities and their parents, and treated a rule making due process hearings more accessible to parents as likely within TEA's authority, while holding that a non-attorney still may not practice law at the hearing.

Non-attorney advocates (as the opinion described it): The opinion concluded a non-attorney may not practice law at these hearings, but declined to mark the precise boundary, because whether specific advocacy conduct constitutes the practice of law depends on the facts.

Common questions

Can a non-lawyer represent a parent at a Texas special education due process hearing?
According to the opinion, a non-attorney may not practice law at such a hearing, because Texas limits the practice of law to licensed attorneys and made no exception for these hearings. The opinion did not decide exactly which non-attorney actions cross into practicing law.

Why does IDEA not settle this?
IDEA lets parties be accompanied and advised by counsel and by individuals with special knowledge of children's disabilities, but it expressly leaves the right to non-attorney representation to state law. The opinion answered the state-law side of that question.

Can the Texas Education Agency pass a rule allowing non-attorney representation?
The opinion concluded TEA has authority to adopt rules governing representation at these hearings. But it cautioned that a rule permitting a non-attorney to engage in conduct that is the practice of law could be held invalid by a court for conflicting with the practice-of-law statute.

How does Texas decide what counts as 'practicing law' here?
The opinion relied on the statutory definition in Government Code section 81.101(a) and on the principle that the determination depends on the facts of the particular conduct, which is why it would not draw a bright line in an opinion. A footnote noted courts also have inherent power to decide the question case by case.

Background and statutory framework

IDEA, 20 U.S.C.A. §§ 1400-1482 (West 2010 & Supp. 2011), conditions federal special education funds on a state's compliance, 20 U.S.C.A. § 1412(a)(1)(A) (West 2010); see Tex. Educ. Code Ann. § 29.001 (West Supp. 2011). It allows complaints about a child's identification, evaluation, placement, or free appropriate public education, 20 U.S.C.A. § 1415(b)(6)(A) (West 2010); 34 C.F.R. § 300.507(a) (2012), resolved through an impartial due process hearing, 20 U.S.C.A. § 1415(f)(1)(A) (West 2010); 34 C.F.R. § 300.511(a) (2012). Federal regulation leaves the right to non-attorney representation to state law. 34 C.F.R. § 300.512(a)(1) (2012); see 20 U.S.C.A. § 1415(h)(1) (West 2010).

Texas limits the practice of law to state bar members, Tex. Gov't Code Ann. § 81.102(a) (West 2005), and defines the practice of law in § 81.101(a). The Legislature has created express exceptions elsewhere, such as eviction suits, Tex. Prop. Code Ann. § 24.011 (West 2000), workers' compensation proceedings, Tex. Lab. Code Ann. § 410.006 (West 2006), and certain tax matters, Tex. Gov't Code Ann. §§ 2003.101(k) (West 2008), 2003.911(a) (West Supp. 2011), but none for special education due process hearings, see Tex. Educ. Code Ann. §§ 29.001-.018 (West 2006 & Supp. 2011); see also Tex. Att'y Gen. Op. No. GA-0909 (2012) (citing FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 884-85 (Tex. 2000)). On agency authority, the opinion relied on Pruett v. Harris Cnty. Bail Bond Bd., 249 S.W.3d 447, 452 (Tex. 2008), and noted IDEA's purposes, 20 U.S.C.A. § 1400(d)(1)(A-B) (West 2010), and TEA's dispute-resolution rule, 19 Tex. Admin. Code § 89.1150(b) (2012). It cautioned, citing State v. Jackson, 376 S.W.2d 341, 345 (Tex. 1964), that a rule conflicting with the practice-of-law statute could be invalid, and noted the judiciary's inherent power, State Bar of Tex. v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994); In re Nolo Press/Folk Law, Inc., 991 S.W.2d 768, 770 n.8 (Tex. 1999).

Citations

Cases:

• FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 884-85 (Tex. 2000)
• Pruett v. Harris Cnty. Bail Bond Bd., 249 S.W.3d 447, 452 (Tex. 2008)
• State v. Jackson, 376 S.W.2d 341, 345 (Tex. 1964)
• State Bar of Tex. v. Gomez, 891 S.W.2d 243, 245 (Tex. 1994)
• In re Nolo Press/Folk Law, Inc., 991 S.W.2d 768, 770 n.8 (Tex. 1999)

Statutes:

• 20 U.S.C.A. §§ 1400-1482 (West 2010 & Supp. 2011)
• 20 U.S.C.A. § 1412(a)(1)(A) (West 2010)
• 20 U.S.C.A. § 1415(b)(6)(A) (West 2010)
• 20 U.S.C.A. § 1415(f)(1)(A) (West 2010)
• 20 U.S.C.A. § 1415(h)(1) (West 2010)
• 20 U.S.C.A. § 1400(d)(1)(A-B) (West 2010)
• 34 C.F.R. § 300.507(a) (2012)
• 34 C.F.R. § 300.511(a) (2012)
• 34 C.F.R. § 300.512(a)(1) (2012)
• Tex. Gov't Code Ann. § 81.102(a) (West 2005)
• Tex. Gov't Code Ann. § 81.101(a) (West 2005)
• Tex. Gov't Code Ann. § 2003.101(k) (West 2008)
• Tex. Gov't Code Ann. § 2003.911(a) (West Supp. 2011)
• Tex. Prop. Code Ann. § 24.011 (West 2000)
• Tex. Lab. Code Ann. § 410.006 (West 2006)
• Tex. Educ. Code Ann. § 29.001 (West Supp. 2011)
• Tex. Educ. Code Ann. §§ 29.001-.018 (West 2006 & Supp. 2011)
• 19 Tex. Admin. Code § 89.1150(b) (2012)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/greg-abbott/ga-0936
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/2012/ga0936.pdf

Original opinion text

Best-effort transcription from the official PDF. Minor extraction artifacts were corrected; the linked PDF is authoritative.

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-1021-GA)

Dear Mr. Scott:

You ask about the authority of non-attorneys to represent parties at special education due process hearings. The special education due process hearings about which you ask are required by the Federal Individuals with Disabilities Education Act (IDEA).[1] 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 2010) (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)(1)(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:

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. GOV'T CODE ANN. § 81.102(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. GOV'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.

However, this office has consistently opined that the question of whether certain conduct constitutes the practice of law 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).

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.

Very truly yours,

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

[1] See 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").

[2] As you ask about only non-attorney representation, we limit our opinion accordingly.

[3] The 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).

[4] The 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 of law on a case by case basis, unconfined by statute.").