Untitled Texas Attorney General Opinion ( 2010 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
October 27,2010
The Honorable Yvonne Davis Opinion No. OA-0813
Chair, Committee on Urban Affairs
Texas House of Representatives Re: Whether parents may use the services of an
Post Office Box 2910 advocate in dealing with matters of their child's
Austin, Texas 78768-2910 education (RQ-0871-GA)
Dear Representative Davis:
You write to inquire generally "whether school districts can prohibit a parent from having
an advocate to act on their behalf on matters pertaining to their child's education.'" You appear to
use the term "advocate" as a term with a particular meaning, yet there is no definition of the term in
your letter. See id. Similarly, you do not provide any context for your question, nor do you ask us
to opine about the scope of any particular statute? See Request Letter at 1. Accordingly, we can
advise you only generally.
We find only one provision in the Education Code that uses the noun "advocate" in the
context of parental involvement in their child's education. See TEX. EDUC. CODE ANN. § 29.306
(West 2006). Without defining the term "advocate," section 29.306 of the Education Code provides
that "a student who is deaf or hard of hearing must have an education in which the student's parents
... and advocates for the student's parents ... are involved in determining the extent, content, and
'Request Letter at I (available at http://www.texasattomeygeneral.gov).
'You offer a provision of the Education Code and a Texas Education Agency ("TEA") rule as examples of
"proactive provisions" that encourage parental participation in their child's education. Request Letter at I; see also TEX.
EDUC. CODE ANN. § 29.005 (West 2006); 19 TEX. ADMIN. CODE § 89.1050(c)(I)(F) (2010) (TEA, The Admission,
Review, and Dismissal (ARD) Committee). Both section 29.005 and the TEA rule pertain specifically to education for
children with disabilities under the federal Individuals with Disabilities Education Improvement Act (IDEA). See TEX.
EDUC. CODE ANN. § 29.001 (West 2006) (requiring development of a statewide plan for the delivery of services to
children with disabilities that includes rules for a "special education program so that a free appropriate public education
is available to all of those children between the ages of three and 21"); 19 TEX. ADMIN. CODE § 89.1001 (2010) (TEA,
Scope and Applicability) (providing that "[ s]pecial education services shall be provided to eligible students in accordance
with all applicable federal law ... and the State Plan Under Part B of the Individuals with Disabilities Education Act");
see also 20 U.S.C.A. § 1412(a)(l)(A) (West 2010) (providing that a state is eligible for funding assistance for a fiscal
year if the state submits a plan assuring that the state complies with IDEA provisions). Because neither provision uses
the term "advocate," and because we do not understand you to ask about the IDEA, we do not address these provisions
in depth.
The Honorable Yvonne Davis - Page 2 (GA-0813)
purpose of programs." Id. This provision expressly provides that parents may have an "advocate"
involved in the education of their deaf or hard-of-hearing child. See id. Accordingly, a school
district may not prohibit a parent from having an advocate within the scope of section 29.306. Cf
Benavides Indep. Sch. Dist. v. Guerra, 681 S.W.2d 246,249 (Tex. App.-SanAntonio 1984, writ
ref d n.r.e.) (recognizing that a school board's act done in contravention of a statute is void).
None of the briefing we received raised a relevant state law provision, and we find no
provision in the Education Code that expressly authorizes a school district either to allow or prohibit
an advocate for all purposes. We thus cannot opine on the authority of a school district with respect
to a parent's use of an advocate in all circumstances. Cf Tex. Att'y Gen. Op. No. JM-1267 (1990)
at 7-8 (declining to answer speculative question).
Briefing we received from the TEA advises that the IDEA's guarantee of a free appropriate
public education for children with disabilities includes the development of an individualized
education program ("IEP").' See also 20 U.S.C.A. §§ 1400(d) (West 2010) (providing purposes of
IDEA), 1414(d) (providing for individualized education program); 34 C.F.R. § 300.323(c) (2009)
(When IEPs must be in effect - Initial IEPs; provision of services); 19 TEx. ADMIN. CODE § 89.1001
(20 I 0) (TEA, Scope and Applicability) (providing for special education services in accordance with
applicable federal law). In general, an IEP is designed by a team of participants that includes, "at
the discretion of the parent or the [school district], other individuals who have knowledge or
special expertise regarding the child." 20 U.S.C.A. § 1414(d)(1)(B)(vi) (West 2010); 34 C.F.R.
§ 300.321(a)(6) (2009) (IEP Team); see also 19 TEx. ADMIN. CODE § 89.l050(c)(1)(F) (2010)
(TEA, The Admission, Review, and Dismissal (ARD) Committee) (providing for an ARD
Committee as the individualized education program). The TEA's brief suggests this individual with
specialized knowledge or expertise is an "advocate" within the scope of your question. See TEA
Brief at 1. Though you do not ask our opinion about this specific provision, we nevertheless advise
that we believe a school district may not prohibit a parent from inviting a person with "knowledge
or special expertise regarding the child" to participate in the development oftheir disabled child's
IEP. See 20 U.S.C.A. § 1414(d)(I)(B)(vi) (West 2010); 34 C.F.R. § 300.321(a)(6)(2009); see also
19 TEX. ADMIN. CODE § 89.l050(c)(I)(F) (2010) (TEA, The Admission, Review, and Dismissal
(ARD) Committee) (providing for an ARD Committee as the individualized education program);
see also Benavides Indep. Sch. Dist., 681 S.W.2d at 249 (recognizing that a school board's act done
in contravention of a statute is void).
You also ask whether a "legislative remedy [is] necessary for granting the use of an advocate
in every circumstance that a parent may face with regard[] to their child's education[.]" Request
Letter at 1. To the extent the Legislature seeks to expressly permit or prohibit the involvement of
an "advocate" in particular circumstances, other than those discussed herein, a legislative remedy
may be necessary.
'Brief from Mr. David Anderson, General Counsel, TEA, at l-2 (Apr. 20, 20l0) [hereinafter TEA Brief].
The Honorable Yvonne Davis - Page 3 (GA-0813)
SUMMARY
A school district may not prohibit a parent from having an
advocate as authorized by section 29.306 of the Education Code.
Similarly, a school district may not prohibit a parent from inviting an
individual with specialized knowledge or expertise to participate in
a disabled child's individual education program pursuant to the
Individuals with Disabilities Education Act.
To the extent the Legislature seeks to expressly permit
or prohibit the involvement of an "advocate" in particular
circumstances, other than those discussed herein, a legislative remedy
may be necessary.
DANIEL T. HODGE
First Assistant Attorney General
DAVID J. SCHENCK
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Charlotte M. Harper
Assistant Attorney General, Opinion Committee