16 Tex. Admin. Code § 22.181 - Dismissal of a Proceeding
(a) Dismissal
of a proceeding. Upon the motion of the presiding officer or the motion of any
party, the presiding officer may recommend that the commission dismiss, with or
without prejudice, any proceeding for any reason specified in this
section.
(b) Dismissal of issues
within a proceeding. Upon the motion of the presiding officer or the motion of
any party, the presiding officer may dismiss or may recommend that the
commission dismiss, with or without prejudice, one or more issues within a
proceeding for any reason specified in this section.
(c) Dismissal without hearing. A dismissal
under this section requires a hearing unless the facts necessary to support the
dismissal are uncontested or are established as a matter of law.
(d) Reasons for dismissal. Dismissal of a
proceeding or one or more issues within a proceeding may be based on one or
more of the following reasons:
(1) lack of
jurisdiction;
(2) moot questions or
obsolete petitions;
(3) res
judicata;
(4) collateral
estoppel;
(5) unnecessary
duplication of proceedings;
(6)
failure to prosecute;
(7) failure
to amend an application such that it is sufficient after repeated
determinations that the application is insufficient;
(8) failure to state a claim for which relief
can be granted;
(9) gross abuse of
discovery consistent with §
22.161(b)(2) of
this title (relating to Sanctions);
(10) withdrawal of an application consistent
with subsection (g) of this section; or
(11) other good cause shown.
(e) Motion for dismissal,
responses, and replies. Dismissal of a proceeding or one or more issues within
a proceeding may be made upon the motion of the presiding officer or the motion
of any party.
(1) A party's motion for
dismissal must specify at least one of the grounds for dismissal identified in
subsection (d) of this section. The motion must include a statement that
explains the basis for the dismissal and if necessary:
(A) A statement that sets forth the material
facts that support the motion; and
(B) An affidavit that supports the motion and
that includes evidence that is not found in the then-existing record.
(2) A presiding officer's motion
must be provided by written order or stated in the record and must specify one
or more grounds for dismissal identified in subsection (d) of this section and
a clear and concise statement of the material facts supporting the
dismissal.
(3) The party that
initiated the proceeding and any other party has 20 days from the date of
receipt to respond to a motion to dismiss unless the presiding officer
specifies otherwise. The response must contain a statement of reasons the party
contends the motion to dismiss should not be granted, and if necessary
(A) A statement that refers to each material
fact identified in the motion to dismiss as uncontested that the responding
party contends is contested; and
(B) An affidavit that supports the response
to the motion to dismiss and that includes evidence the party relies upon to
establish contested issues of fact. The affidavit may include evidence that is
not found in the then-existing record.
(4) Replies to a response to a motion to
dismiss may be made only by leave of and as directed by the presiding
officer.
(f) Action on a
motion to dismiss. Action on a motion to dismiss must conform to this
subsection.
(1) If a hearing on the motion to
dismiss is held, that hearing must be confined to the issues raised by the
motion to dismiss.
(2) If the
administrative law judge determines that all issues within a proceeding should
be dismissed, the administrative law judge must prepare a proposal for decision
in accordance with §
22.261 of this title (relating to
Proposals for Decision) to that effect, unless the reason for dismissal is
solely one of the following:
(A) the
withdrawal of an application under subsection (g)(1), (2), or (3) of this
section; or
(B) either failure to
prosecute under subsection (d)(6) of this section or failure to amend an
application such that it is sufficient after repeated determinations that the
application is insufficient under subsection (d)(7) of this section, or both,
and the dismissal is without prejudice.
(3) For dismissal under paragraphs (2)(A) and
(2)(B) of this subsection, the administrative law judge may issue an order
dismissing the proceeding. An order issued under this paragraph is a final
order of the commission and is subject to motions for rehearing under §
22.264 of this title (relating to
Rehearing).
(4) The commission will
consider a proposal for decision recommending dismissal as soon as is
practicable.
(5) If the commission
determines that all issues within a proceeding should be dismissed, the
commission will issue an order subject to motions for rehearing under §
22.264 of this title.
(6) If the administrative law judge
determines that one or more, but not all, issues within a proceeding should be
dismissed, the administrative law judge may issue a proposal for interim
decision or an interim order dismissing such issues. An interim order issued by
the administrative law judge resulting in partial dismissal is subject to
appeal or reconsideration under §
22.123 of this title (relating to
Appeal of an Interim Order and Motions for Reconsideration of Interim Order
Issued by the Commission). If the commission determines that one or more, but
not all, issues within a proceeding should be dismissed, the commission may
issue an interim order dismissing such issues. An interim order issued by the
commission resulting in partial dismissal is subject to appeal or
reconsideration under §
22.123 of this title.
(g) Withdrawal of application. An
application may be withdrawn only in accordance with this subsection.
(1) A party that initiated a proceeding may
withdraw its application without prejudice to refiling of same, at any time
before that party has presented its direct case. A party may agree to withdraw
its application with prejudice.
(2)
After the presentation of its direct case, but prior to the issuance of a
proposed order or proposal for decision, a party may request to withdraw its
application with or without prejudice, and withdrawal may be granted only upon
a finding of good cause by the presiding officer.
(3) The presiding officer may grant a request
to withdraw an application with or without prejudice after a proposed order or
proposal for decision has been issued if the request to withdraw is filed by
the applicant and the applicant's application would be granted by the proposed
order or proposal for decision.
(4)
A request to withdraw an application with or without prejudice after a proposed
order or proposal for decision has been issued that is filed by an applicant to
whom the result of the proposed order or proposal for decision is adverse may
be granted only upon a finding of good cause by the commission. In ruling on
the request, the commission will weigh the importance of the matter being
addressed to the jurisprudence of the commission and the public
interest.
(5) A request to withdraw
an application with or without prejudice after the application has been placed
on an open meeting agenda for consideration of an appeal of an interim order, a
request for certified issues, or a preliminary order with threshold legal or
policy issues may be granted only upon a finding of good cause by the
commission. In ruling on the request, the commission will weigh the importance
of the matter being addressed to the jurisprudence of the commission and the
public interest.
(6) If a request
to withdraw an application is granted, the presiding officer must issue an
order of dismissal stating whether the dismissal is with or without prejudice.
If the presiding officer finds good cause, the order of dismissal under this
paragraph must not be with prejudice, unless the applicant requests dismissal
with prejudice. Such order must, if applicable, specify the facts on which good
cause is based and the basis of the dismissal and is the final order of the
commission subject to motions for rehearing under §
22.264 of this title.
Notes
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