Administrative Law Board Certification by the TBLS

The specific area requirements can be found in Part II of the Texas Board of Legal Specialization (TBLS) standards for attorney certification. As part of those specific requirements, the attorney that applies to become a board certified specialist in administrative law by the TBLS must:

• demonstrate substantial involvement and special competence in the practice of Texas and federal administrative law, including, without limitation, representing clients before administrative agencies, practicing law within those agencies, and handling judicial proceedings involving those agencies.
• show substantial involvement and special competence in Texas and federal administrative law practice by providing such information as may be required by TBLS; 
• devote a minimum of 30% of his or her time practicing Texas and federal administrative law during each year of the 3 years immediately preceding application as defined in Section XIII, A of the Specific Area Requirements for Administrative Law;
• provide information as required by TBLS concerning specific tasks he or she has performed in Texas and federal administrative law 
  • showing primary responsibility as a party representative, agency representative, or presiding official (e.g. an administrative law judge or hearing officer) in one of the following categories during his or her entire practice:
    • Contested Cases Resolved - A total of 10 contested case hearings before Texas or federal administrative agencies of which at least:
      • Five (5) cases must have been resolved after hearings on the merits were held and involved final orders issued by the agencies, and
      • Five (5) cases may have been resolved by applicant’s involvement in formal alternative dispute resolution (ADR) proceedings (i.e. mediations or arbitrations), or in case preparation and presentation to an internal agency forum after active case development (such as, oral and written discovery, pre-hearing motion practice, investigation, witness preparation, and settlement conferences or negotiations).
      • A minimum of 60 days in contested case hearings before Texas or federal administrative agencies, of which 15 days may be in ADR proceedings (i.e. mediations or arbitrations), or equivalent formal agency settlement procedures, involving contested cases before administrative agencies. (c) Judicial Review.
      • Ten (10) proceedings involving the judicial review of agency orders under the Texas Administrative Procedure Act or the Federal Administrative Procedure Act.
      • A combination of contested case hearings and judicial review proceedings totaling 10 matters.
      • General Administrative Law Experience. In addition to the cases required in Section XIII, B, 1, b, (1) above, the applicant must meet 3 of the following categories during his or her entire practice:
        • Major Rulemaking Proceedings - Substantial involvement in a major rule-making proceeding before a Texas or federal agency such as petitioning for or drafting rules;
        • Original Judicial Proceeding - Primary responsibility for a party in 3 original judicial actions in Texas or federal court involving agency activities, for example, suits challenging agency rules or the prosecution or defense of suits for an injunction, declaratory judgment, mandamus, or enforcement.
        • Uncontested Proceedings - Primary responsibility as a hearings examiner, agency counsel, private practitioner, or presiding official (e.g. an administrative law judge or hearing officer) in 12 uncontested proceedings.
        • Client Counseling - Primary responsibility for client counseling as agency counsel (either with an agency or in the attorney general's office) or as a private practitioner in 5 substantial matters dealing with, for example, the necessity of obtaining permits, the interpretation of agency requirements or statutory authority, compliance with the Texas Open Meetings Act or Public Information Act.
        • Additional Contested Case Hearings or Judicial Proceedings - Primary responsibility as a party representative, agency representative, or presiding official (e.g. an administrative law judge or hearing office) in:
          • an additional 5 contested case hearings before Texas or federal administrative agencies;
          • an additional 5 proceedings involving the judicial review of agency orders under the Texas Administrative Procedure Act or the Federal Administrative Procedure Act; or
          • a combination of contested case hearings and judicial review proceedings totaling 5 matters.

To become recertified as a specialist in administrative law by the Texas Board of Legal Specialization, the applicant must have devoted a minimum of 30% of his or her time practicing Texas or federal administrative law during each year of the 5 year period of certification as defined in Section XIII, A of the Specific Area Requirements for Administrative Law except as provided for in Part I–General Requirements, Section VI, C,1(b).

The attorney must submit a minimum of 5 names and addresses of persons to be contacted as references to attest to his or her competence in administrative law. These persons must be substantially involved in administrative law, and be familiar with the applicant"s administrative law practice.

The attorney must submit names of persons with whom he or she has had dealings involving administrative law matters within the 3 years immediately preceding application.

The attorney must submit the following types of references:

• Three Texas attorneys who are substantially involved in administrative law. The applicant shall have tried an administrative law matter with or against one of these attorneys.
• Two of the following (present or former) before whom applicant has appeared as an advocate in an administrative law matter:
  • A judge of any court of record in Texas, Texas Courts of Appeal, or the Texas Supreme Court.
  • A hearing officer or hearing examiner of an administrative agency with jurisdiction in Texas.

The purpose of the certification exam is to require an applicant to demonstrate substantial knowledge of significant legal concepts and corresponding skills in administrative law. The essay questions involve situations administrative law attorneys would likely encounter in their practice and include issues, by way of example only, as to whether or not:

• an agency hearing was conducted consistent with the requirements of the Administrative Procedures Act; 
• the propriety of the actions of a hearing officer or state agency:
• evidentiary issues arising in contested hearings; and
• appropriate proposals for decision and remedies for correcting or appealing agency decisions.

The multiple choice questions are designed to test a breadth of issues in the specialty area and require an applicant to select the option that represents the best available answer. An applicant in administrative law is expected to understand all aspects of contested case hearings, including discovery, procedure, burden of proof and evidence issues.

A detailed list of required knowledge in administrative law is set out below:

1. The Administrative Procedure Act (Chapter 2001, TEX. GOV’T CODE)
2. The Handling of Contested Cases under the APA
   • Agency record
   • Agency orders, including enforcement of orders, rules and actions
   • Alternative dispute resolution procedures (Chapter 2009, TEX. GOV’T CODE)
   • Delegation of powers to agencies
   • De novo hearings
   • Discovery
   • Exhaustion of remedies
   • Evidence
   • Ex parte communications
   • Findings of fact and conclusions of law
   • Hearing procedures
   • Licensing (Chapter 2005, TEX. GOV’T CODE)
   • Proposal for decision, exceptions and replies
   • Motions for rehearing
   • Representation before state agencies (Chapter 2004, TEX. GOV’T CODE)
3. Hearings before the State Office of Administrative Hearings
   • SOAH, Chapter 2003, TEX. GOV’T CODE
   • SOAH Rules of Procedure, 1 TAC Chapter 155
4. Judicial Review of Agency Orders and Judicial Enforcement of Agency Orders and Rules, including:
   • Declaratory judgments, Injunctions and Mandamus
   • Texas Rules of Civil Procedure
   • Texas Civil Practice and Remedies Code
   • Texas Rules of Evidence
   • Texas Rules of Appellate Procedure
   • Travis County District Court Rules
   • Res judicata
   • Sovereign/legislative immunity
   • Permission to sue
   • Standing
   • Standard/Scope of Judicial Review
   • Use of Administrative Procedure Act procedures
5. Agency Rulemaking including:
   • APA provisions concerning rulemaking
   • Texas Register and Administrative Code (Chapter 2002, TEX. GOV’T CODE)
   • Negotiated rulemaking (Chapter 2008, TEX. GOV’T CODE)
6. Open Meetings (Chapter 551, TEX. GOV’T CODE)
7. Public Information (Chapter 552, TEX. GOV’T CODE)
8. Registration of lobbyists (Chapter 305, TEX. GOV’T CODE)
9. The Texas Disciplinary Rules of Professional Conduct. The ethics questions regarding this topic will involve an array of hypothetical fact situations which will cover several different aspects of ethical issues that arise in the practice of law. The questions will not be limited to the practice of any one specialty area, and consequently, an applicant is advised to be familiar with all provisions of the TDRPC.