16 Tex. Admin. Code § 1.25 - Contested Cases Brought by the Enforcement Section
(a) Commencement of a contested case.
(1) Enforcement contested cases are commenced
when a division of the Commission refers the matter to the Enforcement Section
of the Office of General Counsel and the Enforcement Section assigns a docket
number to the case. Before filing a complaint, the Commission may offer to
settle the case through an agreed order.
(2) If the Commission does not offer to
settle, or the terms of the offer are not timely met by the respondent, the
Commission will send the original complaint to the respondent by certified and
regular first-class mail. In cases against foreign or non-resident respondents,
the complaint will also be sent to the resident agent listed on the
respondent's most recently filed Organization Report (Form P-5). The complaint
will be accompanied by a letter alleging that the respondent has violated
Commission rules or statutes as set forth in the original complaint; that the
respondent may, within 30 days of the date of service, file an answer or
request a hearing to contest the allegations of the original complaint; and
that the respondent may wish to hire an attorney or other authorized
representative or choose to appear on its own behalf. The letter will notify
the respondent that if, on 31st day after the date of service, it has not
entered into an agreed order, filed an answer to the original complaint, or
requested a hearing, a default final order may thereafter be issued against
respondent without further notice. Concurrent with the complaint, the
Commission may make an offer to settle the case through an agreed
order.
(3) When there is actual
pollution or injury to the public health and safety, or an imminent threat
thereof, a hearing may be set and notice of the hearing sent with the original
complaint. The notice will state that if the respondent fails to appear at the
hearing, a default final order may be issued against respondent without further
notice as specified in subsection (d) of this section.
(b) Filing of answer or request for hearing;
setting of hearing. A request for hearing made by the respondent shall serve as
a general denial of the allegations in the original complaint. An answer or
request for hearing is timely if filed with the Docket Services Section before
the matter is included on an open meeting agenda of the Commission that has
been posted with the Secretary of State. Except in cases brought under
subsection (a)(3) of this section, the Enforcement Section will coordinate with
the Docket Services Section to set a hearing on a date at least 30 days after
receipt of a timely answer or hearing request, unless the case is disposed of
by other means.
(c) Notice of
hearing. Notices of hearing will be sent along with the original complaint to
respondents or their authorized representatives in all cases brought under
subsection (a)(3) of this section. In all other cases, notices of hearing will
be sent, along with a current Enforcement Section pleading, only after the
respondent or its authorized representative has timely filed a request for
hearing or an answer. The notice will be sent to the address from which the
request or answer was received, and will state that if the respondent fails to
appear at the hearing, a default final order may be issued against respondent
without further notice as specified in subsection (d) of this
section.
(d) Default order upon
failure to answer, request hearing, or appear at hearing.
(1) If the respondent fails to timely answer
the original complaint, request a hearing, or appear at a scheduled hearing, a
default final order may be issued by the Commission without further
notice.
(2) Default final orders
will contain findings of fact and conclusions of law sufficient to support the
relief ordered.
(3) No default
final order shall be issued until the Commission has access to the proof of
service of the original complaint or the notice of hearing, or the returned
certified mail containing the complaint or the notice, has been on file with
the Commission for 15 days, exclusive of the day of receipt and day of
issuance. Default final orders need not be individually signed in each case by
the Commissioners if the case is listed by docket number and summarized on a
Master Default Order.
(e) Non-applicability of this section to
emergency situations. The existing power of the Commission to remedy and seek
reimbursement for remediation of any condition which threatens the public
health and safety, or to order an operator to remedy said condition, shall not
be affected by this section.
(f)
When the Enforcement Section alleges a violation of Texas Natural Resources
Code, §
91.143,
relating to false information filed with the Commission, if the records that
are subject of the proceeding are incorrect, there is a presumption that the
respondent filed the record knowing it to be incorrect. The presumption may be
rebutted by competent evidence.
Notes
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