22 Tex. Admin. Code § 213.22 - Formal Proceedings

(a) Formal administrative hearings in contested cases shall be conducted in accordance with the APA and SOAH rules. Jurisdiction over the case is acquired by SOAH when the staff or respondent files a Request to Docket Case Form accompanied by legible copies of all pertinent documents, including but not limited to the complaint, petition, application, or other document describing the agency action giving rise to a contested case.

(b) When a case has been docketed before SOAH, Board staff or respondent shall provide a notice of hearing to all parties in accordance with § 2001.052, Texas Government Code, and applicable SOAH rules.

(c) In disciplinary cases, the respondent shall enter an appearance by filing a written answer or other responsive pleading with SOAH, with a copy to staff, within 20 days of the date on which the notice of hearing is served to the respondent.

(d) For purposes of this section, an entry of an appearance shall mean the filing of a written answer or other responsive pleading.

(e) The failure of the respondent to timely enter an appearance as provided in this section shall entitle the staff to a continuance at the time of the hearing in the contested case for such reasonable period of time as determined by the judge.

(f) The notice of hearing provided to a respondent for a contested case shall include the following language in capital letters in 12-point bold face type: FAILURE TO ENTER AN APPEARANCE BY FILING A WRITTEN ANSWER OR OTHER RESPONSIVE PLEADING TO THE FORMAL CHARGES WITHIN 20 DAYS OF THE DATE THIS NOTICE WAS MAILED, SHALL ENTITLE THE STAFF TO A CONTINUANCE AT THE TIME OF THE HEARING.

(g) If a respondent fails to appear in person or by attorney on the day and at the time set for hearing in a contested case, regardless of whether an appearance has been entered, the judge, pursuant to SOAH's rules, shall, upon adequate proof that proper notice under the APA and SOAH rules was served upon the defaulting party, enter a default judgment in the matter adverse to the respondent. Such notice shall have included in 12-point, bold faced type, the fact that upon failure of the party to appear at the hearing, the factual allegations in the notice will be deemed admitted as true and the relief sought in the proposed recommendation by the staff shall be granted by default.

(h) Any default judgment granted under this section will be entered on the basis of the factual allegations in the formal charges contained in the notice of hearing, and upon proof of proper notice to the respondent. For purposes of this section, proper notice means notice sufficient to meet the provisions of the Texas Government Code §§ 2001.051, 2001.052 and 2001.054, as well as § 213.10 of this title (relating to Notice and Service). Such notice of hearing also shall include the following language in capital letters in 12-point boldface type: FAILURE TO APPEAR AT THE HEARING IN PERSON OR BY LEGAL REPRESENTATIVE, REGARDLESS OF WHETHER AN APPEARANCE HAS BEEN ENTERED, WILL RESULT IN THE ALLEGATIONS CONTAINED IN THE FORMAL CHARGES BEING ADMITTED AS TRUE AND THE PROPOSED RECOMMENDATION OF STAFF SHALL BE GRANTED BY DEFAULT.

(i) A motion to vacate a default judgment rendered by the judge must be filed within 10 days of service of notice of the default judgment.

(1) The motion to vacate the default judgment shall be granted if movant proves by the preponderance of the evidence that the failure to attend the hearing was not intentional or the result of conscious indifference, but due to accident or mistake, provided that respondent has a meritorious defense to the factual allegations contained in the formal charges and the granting thereof will occasion no delay or otherwise work an injury to the Board.

(2) If the motion to vacate the default judgment is granted, it shall be the responsibility of the parties to either settle the matter informally or to request a rehearing on the merits. Whenever possible, the rehearing of the case shall occur with the judge that heard the default matter.

(j) Because of the often voluminous nature of the records properly received into evidence by the judge, the party introducing such documentary evidence may paginate each such exhibit or flag pertinent pages in each such exhibit in order to expedite the hearing and the decision-making process.

(k) The schedule of sanctions set out in the NPA is adopted by the Board, and the judge shall use such sanctions as well as any sanctions adopted by the Board by rule.

(l) Within a reasonable time after the conclusion of the hearing, the judge shall prepare and serve on the parties a proposal for decision that includes the judge's findings of fact and conclusions of law and a proposed order recommending a sanction to be imposed, if any.

(m) Each hearing may be recorded by a court reporter in accordance with the APA and SOAH rules. The cost of the transcription of the statement of facts shall be borne by the party requesting the transcript and said request shall be sent directly to the court reporter and the requesting party shall notify the other party in writing of the request.

(n) A party who appeals a final decision of the Board shall pay all of the costs of preparation of the original and any certified copy of the record of the proceeding that is required to be transmitted to the reviewing court.

(1) The record in a contested case shall consist of the following:

(A) all pleadings, motions, intermediate rulings;

(B) all evidence received or considered by the judge;

(C) a statement of the matters officially noticed;

(D) questions and offers of proof, objections, and rulings thereon;

(E) proposed findings and exceptions;

(F) any decision, opinion, or report by the judge presiding at the hearing;

(G) all staff correspondence submitted to the judge in connection with his or her consideration of the case; and

(H) the transcribed statement of facts (Q & A testimony) from the hearing unless the parties have stipulated to all or part of the statement of facts.

(2) Calculation of costs for preparation of the record shall be governed by the same procedure utilized by the Board in preparing documents responsive to open records requests pursuant to the Public Information Act. These costs shall include, but not be limited to, the cost of research, document retrieval, copying, and labor.

Notes

22 Tex. Admin. Code § 213.22

The provisions of this §213.22 adopted to be effective August 15, 2002, 27 TexReg 7107