19 Tex. Admin. Code § 249.35 - Disposition Prior to Hearing; Default
(a) This
chapter and 1 Texas Administrative Code (TAC), Part 7, Chapter 155 (relating to
Rules of Procedure) shall govern disposition prior to hearing, default, and
attendant relief.
(b) The Texas
Education Agency (TEA) staff or the commissioner of education may issue and
sign orders on behalf of the State Board for Educator Certification (SBEC)
resolving a case, prior to the issuance of a proposal for decision by the
presiding administrative law judge (ALJ) at the State Office of Administrative
Hearings (SOAH), by waiver, stipulation, compromise, agreed settlement, consent
order, agreed statement of facts, or any other informal or alternative
resolution agreed to by the parties and not precluded by law.
(c) The SBEC or the SOAH may dispose of a
case through dismissal, partial or final summary disposition, or any other
procedure authorized by SOAH rules of procedure prior to a contested case
hearing on the merits on the following grounds: unnecessary duplication of
proceedings; res judicata; withdrawal; mootness; lack of jurisdiction; failure
of a party requesting relief to timely file or file in proper form a pleading
that would support an order or decision in that party's favor; failure to
comply with an applicable order, deadline, rule, or other requirement issued by
the SBEC, the TEA staff, or the presiding ALJ; failure to state a claim for
which relief can be granted; or failure to prosecute.
(d) In any contested case hearing conducted
pursuant to this chapter, the findings made by a hearing examiner in a
proceeding arising under the Texas Education Code, Chapter 21, Subchapter F,
shall not be conclusive but, the record of such proceeding, including all
testimony and evidence admitted in the hearing, as well as the findings of the
hearing examiner, shall be deemed admissible in a proceeding brought pursuant
to this chapter and shall be considered by the ALJ and the SBEC in issuing a
proposed or final decision.
(e) For
purposes of this chapter, the following shall constitute a default in a
contested case:
(1) the failure of the
respondent to timely file a written answer in proper form as required by this
chapter;
(2) the failure of the
petitioner in an administrative denial case to timely file a petition in proper
form as required by this chapter; or
(3) the failure of the certificate holder or
applicant to appear in person or by authorized representative on the day and at
the time set for hearing in a contested case, regardless of whether a written
answer or petition has been filed.
(f) Upon the occurrence of an event of
default as defined in this section, the SBEC may enter a default judgment, as
authorized by the Texas Government Code, §
2001.056, or 1 TAC,
Part 7, §155.501 (relating to Default Proceedings).
(1) If a respondent has failed to timely file
a written answer or a petitioner in an administrative denial case has failed to
timely file a petition, TEA staff will provide the certificate holder or
applicant with a notice of default specifying the factual and legal basis for
imposing the proposed sanction at least 30 calendar days prior to presenting a
motion for default to the SBEC. It is a rebuttable presumption that the notice
was served on the certificate holder or applicant no later than five calendar
days after mailing.
(2) If the case
is dismissed and remanded to the SBEC by the SOAH after a certificate holder or
applicant failed to appear in person or by authorized representative on the day
and at the time set for hearing in a contested case, the TEA staff attorney
shall present to the SBEC a motion for default. After consideration of the
petition and the motion for default, the SBEC may then issue a default order
deeming the allegations in the petition as true.
(3) Prior to issuance of a default decision
or order, the certificate holder may contest the issuance of a default judgment
by written notice filed with TEA staff or by written request to appear before
the SBEC at an SBEC meeting to show good cause for failure to file an answer or
appear at the contested case proceeding.
Notes
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