25 Tex. Admin. Code § 1.25 - Default
(a) For purposes of this section, default
means the failure of the respondent to appear in person or by legal
representative on the day and at the time set for hearing in a contested case
or the failure to appear by telephone in accordance with the notice of
hearing.
(b) Remedies available
upon default. The Administrative Law Judge (ALJ) shall proceed in the party's
absence and such failure to appear shall entitle the department to seek
informal disposition as provided by the Texas Government Code, Chapter 2001.
The ALJ shall grant any motion by the department to remove the case from the
contested hearing docket and allow for informal disposition by the
commissioner.
(c) The commissioner
may enter a default judgment by issuing an order against the defaulting party
in which the factual allegations in the notice of hearing are deemed admitted
as true without the requirement of submitting additional proof, upon the offer
of proof that proper notice was provided to the defaulting party opponent. For
purposes of this section, proper notice means notice sufficient to meet the
provisions of the Texas Government Code, Chapter 2001 and the State Office of
Administrative Hearings Rules of Procedure, 1 Texas Administrative Code,
Chapter 155.
(d) Motion to set
aside and reopen. A timely motion by the respondent to set aside the default
order and reopen the record may be granted if the respondent establishes that
the failure to attend the hearing was neither intentional nor the result of
conscious indifference, and that such failure was due to mistake, accident, or
circumstances beyond the respondent's control.
(1) A motion to set aside the default order
and reopen the record shall be filed with the commissioner prior to the time
that the order of the commissioner becomes final pursuant to the provisions of
the Texas Government Code.
(2) A
motion to set aside the default order and reopen the record is not a motion for
rehearing and is not to be considered a substitute for a motion for rehearing.
The filing of a motion to set aside the default order and reopen has no effect
on either the statutory time periods for the filing of a motion for rehearing
or on the time period for ruling on a motion for rehearing, as provided in the
Texas Government Code.
(e) This subsection also applies to cases
where service of the notice of hearing on a defaulting party is shown only by
proof that the notice was sent to the party's last known address as shown on
the department's records, with no showing of actual receipt by the defaulting
party or the defaulting party's agent. In that situation, the default
procedures described in subsection (c) of this section may be used if there is
credible evidence that the notice of hearing was sent by certified or
registered mail, return receipt requested, to the defaulting party's last known
address.
Notes
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