16 Tex. Admin. Code § 1.45 - Service in Protested Contested Cases

(a) Service requirements. A copy of any pleading or document filed in a protested contested case shall be served by a party as follows:

(1) On the same day a party files a document with the Commission, the party shall serve a copy on every other party and any other person required by the Hearings Division. If a party is represented by an authorized representative, service shall be made on that representative; and

(2) All filings shall include a certificate of service that copies have been served on all persons described in paragraph (1) of this subsection. The certificate of service shall include the date and manner of service and the names and addresses of all persons served. If a person is served by fax or email, the certificate of service shall include the person's fax number or email, as applicable.

(b) Methods of service.

(1) A pleading or document may be served by hand delivering a copy to the person to be served, or by first class, certified, or registered mail, commercial delivery service, fax, email, or by such other manner as the Commission may require.

(A) Service by mail or commercial delivery service shall be complete upon deposit of the document postpaid and properly addressed to the person's last known address with the United States Postal Service or a commercial delivery service.

(B) Service by fax shall be sent to the person's current fax number and is complete on the date of the fax. Fax transmissions completed after 5 p.m. local time of the recipient shall be deemed served on the following business day.

(C) Personal service may be effectuated by hand delivering a copy to the person to be served and is complete on the date of delivery. Personal service completed after 5 p.m. local time of the recipient shall be deemed served on the following business day.

(D) Service by email may be used if the person to be served consents to be served by email pursuant to § 1.27 or § 1.32 of this title (relating to Parties and Authorized Representatives, and Form and Content of Pleadings, respectively). If the person consents to be served by email, the person affirmatively consents to the release and disclosure of the email address. Email service is complete on the date of the email transmission. An email received after 5 p.m. local time of the recipient shall be deemed served on the following business day.

(2) Proof of service. The filing party or authorized representative shall certify compliance with this rule in writing over signature and on the filed instrument. A certificate showing service shall be prima facie evidence of the fact of service. In cases of personal service, the certificate shall state when the pleading or motion was served and the manner of service. The recitations in the certificate are prima facie evidence of the facts cited in the certificate.

(c) Service by mail or commercial delivery service. Unless otherwise directed by the examiner or Hearings Director, when a party is required to do some act within a prescribed time period following service of a pleading, motion, or discovery document described in § 1.51 of this title (relating to Forms and Scope of Discovery in Contested Cases) and the pleading, motion, or discovery document is served by mail or commercial delivery service, three days shall be added to the prescribed response period.

(d) Failure to serve. The serving party has the burden of proving the date and time of service. The failure of a party to serve a pleading or filed document on another party or person as required by this section may be sufficient grounds for the Hearings Director or the examiner to strike the pleading or filed document, or to take other appropriate action. A party may offer evidence or testimony that a notice or document was not received, or if service was by mail, that it was not received within three days from the date of mailing, and upon so finding, the examiner or Hearings Director may extend the time for taking the action required of the party or grant other appropriate relief.

(e) Service by the Commission.

(1) For documents served on a party with an active or delinquent organization report on file pursuant to § 3.1 of this title (relating to Organization Report; Retention of Records; Notice Requirements), the Commission shall serve documents by:

(A) first class mail to the address shown on the most recently filed organization report or the most recently filed letter notification of change of address, in which case the document is presumed received if the document is not returned to the Commission;

(B) certified mail to the address described in subparagraph (A) of this paragraph, in which case service is effective upon:

(i) acceptance of the item by any person at the address;

(ii) initial failure to claim or refusal to accept the item by any person at the address prior to its eventual return to the Commission by the United States Postal Service; or

(iii) return of the item to the Commission by the United States Postal Service bearing a notation such as "addressee unknown," "no forwarding address," "forwarding order expired," or any similar notation indicating that the organization's mailing address shown on the most recently filed organization report or address change notification letter is incorrect; or

(C) personal service or registered or certified mail to the address described in subparagraph (A) of this paragraph for revocation, suspension, annulment, or withdrawal of a license.

(2) For documents served on all other parties, unless otherwise required by law, the Commission shall serve documents in accordance with subsection (b) of this section.

Notes

16 Tex. Admin. Code § 1.45

The provisions of this §1.45 adopted to be effective June 1, 1991, 16 TexReg 2289; Adopted by Texas Register, Volume 42, Number 33, August 18, 2017, TexReg 4135, eff. 8/21/2017