April 2024 Committee on School Initiatives Item 7
Proposed Amendment to 19 TAC Chapter 157, Hearings and Appeals, Subchapter D, Independent Hearing Examiners, §157.41, Certification Criteria for Independent Hearing Examiners
(Second Reading and Final Adoption)
April 12, 2024
COMMITTEE ON SCHOOL INITIATIVES: ACTION
STATE BOARD OF EDUCATION: ACTION
SUMMARY: This item presents for second reading and final adoption a proposed amendment to 19 Texas Administrative Code (TAC) Chapter 157, Hearings and Appeals, Subchapter D, Independent Hearing Examiners, §157.41, Certification Criteria for Independent Hearing Examiners. The proposed amendment would reduce the length of time an attorney must be licensed and engaged in full-time practice to be eligible to serve as an independent hearing examiner and expand the experience requirements to include family law, criminal law, and personal injury law. No changes are recommended since approved for first reading.
STATUTORY AUTHORITY: Texas Education Code (TEC), §21.252(a).
TEC, §21.252(a), requires the State Board of Education (SBOE) to establish certification criteria for independent hearing examiners.
The full text of statutory citations can be found in the statutory authority section of this agenda.
EFFECTIVE DATE: The proposed effective date of the proposed amendment is 20 days after filing as adopted with the Texas Register. Under TEC, §7.102(f), the SBOE must approve the rule action at second reading and final adoption by a vote of two-thirds of its members to specify an effective date earlier than the beginning of the 2024-2025 school year. The earlier effective date will allow independent hearing examiners to be selected using the modified requirements as soon as possible.
PREVIOUS BOARD ACTION: The SBOE adopted §157.41 in 1995 and last amended it effective October 21, 2019. At the January-February 2024 meeting, the SBOE approved the proposed amendment to §157.41 for first reading and filing authorization.
BACKGROUND INFORMATION AND JUSTIFICATION: Chapter 157, Subchapter D, addresses criteria for the certification of hearing examiners eligible to conduct hearings.
During the rule review required under Texas Government Code, §2001.039, the SBOE requested that Texas Education Agency (TEA) staff present a proposed amendment to §157.41 that would modify the experience requirements for hearing examiners.
Subsection (d)(2) would be amended to require that an independent hearing examiner must not have had his or her license reprimanded, suspended, or revoked within the last three years.
Subsection (d)(3) and (4) would be amended to reduce the requirements that an independent hearing examiner must have been licensed to practice law and engaged in the practice of law on a full-time basis from five years to three years.
Subsection (e) would be amended to expand the experience requirements to include family law, criminal law, and personal injury law.
FISCAL IMPACT: No changes have been made to this section since published as proposed.
TEA has determined that there are no additional costs to state or local government required to comply with the proposal.
LOCAL EMPLOYMENT IMPACT: No changes have been made to this section since published as proposed.
The proposal has no effect on local economy; therefore, no local employment impact statement is required under Texas Government Code, §2001.022.
SMALL BUSINESS, MICROBUSINESS, AND RURAL COMMUNITY IMPACT: No changes have been made to this section since published as proposed.
The proposal has no direct adverse economic impact for small businesses, microbusinesses, or rural communities; therefore, no regulatory flexibility analysis specified in Texas Government Code, §2006.002, is required.
COST INCREASE TO REGULATED PERSONS: No changes have been made to this section since published as proposed.
The proposal does not impose a cost on regulated persons, another state agency, a special district, or a local government and, therefore, is not subject to Texas Government Code, §2001.0045.
TAKINGS IMPACT ASSESSMENT: No changes have been made to this section since published as proposed.
The proposal does not impose a burden on private real property and, therefore, does not constitute a taking under Texas Government Code, §2007.043.
GOVERNMENT GROWTH IMPACT: No changes have been made to this section since published as proposed.
TEA staff prepared a Government Growth Impact Statement assessment for this proposed rulemaking. During the first five years the proposed rulemaking would be in effect, it would expand an existing regulation by modifying the experience requirements for independent hearing examiners.
The proposed rulemaking would not create or eliminate a government program; would not require the creation of new employee positions or elimination of existing employee positions; would not require an increase or decrease in future legislative appropriations to the agency; would not require an increase or decrease in fees paid to the agency; would not create a new regulation; would not limit or repeal an existing regulation; would not increase or decrease the number of individuals subject to its applicability; and would not positively or adversely affect the state's economy.
PUBLIC BENEFIT AND COST TO PERSONS: No changes have been made to this section since published as proposed.
The proposal would reduce the number of years independent hearing examiners must have been licensed to practice law and must have been engaged in the practice of law on a full-time basis from five years to three years. It would also expand the experience requirements to include family law, criminal law, and personal injury law. There is no anticipated economic cost to persons who are required to comply with the proposal.
DATA AND REPORTING IMPACT: No changes have been made to this section since published as proposed.
The proposal would have no data and reporting impact.
PRINCIPAL AND CLASSROOM TEACHER PAPERWORK REQUIREMENTS: No changes have been made to this section since published as proposed.
TEA has determined that the proposal would not require a written report or other paperwork to be completed by a principal or classroom teacher.
PUBLIC COMMENTS: Following the January-February 2024 SBOE meeting, notice of the proposed amendment to §157.41 was filed with the Texas Register, initiating the public comment period. The public comment period began March 1, 2024, and ended at 5:00 p.m. on April 1, 2024. No comments had been received at the time this item was prepared. A summary of public comments received will be provided to the SBOE during the April 2024 meeting. The SBOE will take registered oral and written comments on the proposal at the appropriate committee meeting in April 2024 in accordance with the SBOE board operating policies and procedures.
MOTION TO BE CONSIDERED: The State Board of Education:
Approve for second reading and final adoption the proposed amendment to 19 TAC Chapter 157, Hearings and Appeals, Subchapter D, Independent Hearing Examiners, §157.41, Certification Criteria for Independent Hearing Examiners; and
Make an affirmative finding that immediate adoption of the proposed amendment to 19 TAC Chapter 157, Chapter 157, Hearings and Appeals, Subchapter D, Independent Hearing Examiners, §157.41, Certification Criteria for Independent Hearing Examiners, is necessary and shall have an effective date of 20 days after filing as adopted with the Texas Register. (Per TEC, §7.102(f), a vote of two-thirds of the members of the board is necessary for an earlier effective date.)
Staff Member Responsible:
Christopher Maska, Deputy General Counsel of Hearings and Appeals / Ethics Advisor
Attachment:
Text of Proposed Amendment to 19 TAC Chapter 157, Hearings and Appeals, Subchapter D, Independent Hearing Examiners, §157.41, Certification Criteria for Independent Hearing Examiners