SECTION 89.1170. Impartial Hearing Officer

(a) The Texas Education Agency (TEA) will maintain a pool of impartial hearing officers to conduct due process hearings. The TEA will assign cases to hearing officers who are private practice attorneys based on an alphabetical rotation. The TEA will assign cases to hearing officers who are employed by the State Office of Administrative Hearings (SOAH) in accordance with the procedures specified in the interagency contract between the TEA and SOAH. If, however, a request for a hearing relates to the same student who was involved in another hearing that was filed within the last 12 months, the TEA may assign the recently filed hearing request to the same hearing officer who presided over the previous hearing. In addition, the same hearing officer may be assigned to hearings involving siblings that are filed within 12 months of each other.

(b) If a hearing officer is also a mediator under §89.1193 of this title (relating to Special Education Mediation), that individual will not be assigned as hearing officer if he or she is the mediator in a pending mediation involving the same student who is the subject of the hearing or was the mediator in a previous mediation involving the student who is the subject of the hearing.

(c) A hearing officer must possess the knowledge and abilities described in 34 Code of Federal Regulations, §300.511(c), and must not be:

(1) an employee of the TEA or the public agency that is involved in the education or care of the child who is the subject of the hearing; or

(2) a person having a personal or professional interest that conflicts with the person's objectivity in the hearing.

(d) A hearing officer is not an employee of the TEA solely because the individual is paid by the TEA to serve as a hearing officer.

(e) A hearing officer has the authority to administer oaths; call and examine witnesses; rule on motions, including discovery and dispositive motions; determine admissibility of evidence and amendments to pleadings; maintain decorum; schedule and recess the proceedings from day to day; and make any other orders as justice requires, including the application of sanctions as necessary to maintain an orderly hearing process.

(f) If a hearing officer is removed, dies, becomes disabled, or withdraws from a hearing before the completion of duties, the TEA will designate a substitute hearing officer to complete the performance of duties without the necessity of repeating any previous proceedings.

(g) A party to a hearing who has grounds to believe that the assigned hearing officer cannot afford the party a fair and impartial hearing due to bias, prejudice, or a conflict of interest may file a written request with the assigned hearing officer asking that the hearing officer recuse himself or herself from presiding over the hearing. Any such written request must state the grounds for the request and the facts upon which the request is based. Upon receipt of a request, the assigned hearing officer must review the request and determine the sufficiency of the grounds stated in the request. The hearing officer then must prepare a written order concerning the request and serve the order on the parties to the hearing within three business days of receiving the request. If the hearing officer finds that the grounds for recusal are insufficient, the TEA will assign a second hearing officer to review the request. The second hearing officer must rule on the request and serve a written order on the parties to the hearing within three business days of receiving the assignment. If the second hearing officer also determines that the grounds for recusal are insufficient, the assigned hearing officer will continue to preside over the hearing. If either the assigned hearing officer or the second hearing officer finds that the grounds for recusal are sufficient, the TEA will assign another hearing officer to preside over the remainder of the proceedings in accordance with the procedures in subsection (a) of this section.

Source Note: The provisions of this §89.1170 adopted to be effective March 6, 2001, 26 TexReg 1837; amended to be effective November 28, 2012, 37 TexReg 9360; amended to be effective December 31, 2013, 38 TexReg 9552; amended to be effective December 2, 2015, 40 TexReg 8642; amended to be effective February 15, 2018, 43 TexReg 766