28 Tex. Admin. Code § 180.8 - Notices of Violation; Notices of Hearing; Default Judgments
(a) A notice of violation (NOV) is a notice
issued to a system participant when the division finds that the system
participant has committed an administrative violation and the division seeks to
impose a sanction under the Act or division rules. An NOV is not required to be
issued before or after the issuance of an ex parte emergency cease and desist
order.
(b) An NOV shall be in
writing and include:
(1) the provision(s) of
the Act, rule, order, or decision of the commissioner that the system
participant violated;
(2) a summary
of the facts that establish that the violation(s) occurred;
(3) a description of the proposed sanction
that the division intends to impose;
(4) a statement of the basis for the proposed
sanction including:
(A) a description of the
underlying facts considered by the division for each of the factors listed in
Labor Code §
415.021(c) and
(c-2), if applicable, (relating to Assessment
of Administrative Penalties) and §
180.26 of this title (relating to
Criteria for Proposing, Recommending and Determining Sanctions; Other Remedies)
in determining the appropriateness of the division's proposed
sanction;
(B) a description of
which factors under Labor Code §
415.021(c) and
(c-2), if applicable, and §
180.26 of this title had a
mitigating or aggravating effect on the division's proposed sanctions;
and
(C) a description of the
division's proposed sanction for each violation or violation type in the case
of repeated administrative violations. This requirement does not prohibit the
division from considering the aggregate impact of all administrative violations
described in the NOV when proposing a sanction if justice requires such
consideration;
(5) the
right to consent to the charge and the proposed sanction(s);
(6) the right to request a hearing;
and
(7) other information about the
rights, obligations, and procedures for requesting a hearing.
(c) The charged party shall file a
written answer to the NOV not later than the twentieth day after the day the
notice is received. The answer shall either consent to the proposed sanction,
and remit the amount of the penalty, if any, or request a hearing by being
filed with the division's chief clerk of proceedings. If the charged party
fails to respond to the NOV within 20 days of receipt of the notice, the
division shall schedule a hearing at the State Office of Administrative
Hearings (SOAH) and provide notice of hearing to the charged party that meets
the requirements of §
148.5 of this title (relating to
Notice of Hearing) and must include the information in subsection (b)(3) and
(4) of this section.
(d) A charged
party that receives a notice of hearing under subsection (c) of this section
shall, within 20 days of the date on which the notice of hearing is provided to
the party, file a written answer or other responsive pleading. Such response
shall be filed in accordance with 1 TAC §
155.101 of this title (relating to
Filing Documents) and § 155.103 of this title (relating to Service of Documents
on Parties).
(e) For purposes of
this section, events described in paragraphs (1) or (2) of this subsection
constitute a default on the part of a charged party who receives a notice of
hearing under subsection (c) of this section:
(1) failure of the charged party to file a
written response as provided by subsection (d) of this section; or
(2) failure of the charged party to appear in
person or by legal representative on the day and at the time set for hearing in
a contested case at SOAH, regardless of whether a written response has been
filed.
(f) In the event
that a charged party defaults as described by subsection (e) of this section,
the division may seek informal disposition by default by the commissioner as
permitted by Government Code §
2001.056.
(g) For purposes of this subchapter,
"disposition by default" shall mean the issuance of an order against the
charged party in which the allegations against the party in the notice of
hearing are deemed admitted as true, upon the offer of proof to the
commissioner that proper notice was provided to the defaulting party. For
purposes of this section, proper notice means notice sufficient to meet the
provisions of the Government Code §
2001.051 and §
2001.052 and §
148.5 of this title (relating to
Notice of Hearing).
(h) After
informal disposition of a contested case by default, a charged party may file a
written motion to set aside the default order and reopen the record. A motion
by the charged party to set aside the default order and reopen the record shall
be granted by the commissioner if the charged party establishes that the
failure to file a written response or to attend the hearing was neither
intentional nor the result of conscious indifference, and that such failure was
due to a mistake or accident. A motion to set aside the default order and
reopen the record shall be filed by the charged party with the division's chief
clerk of proceedings prior to the time that the order of the commissioner
becomes final pursuant to the applicable provisions of Government Code, Chapter
2001, Subchapter F.
(i) 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. A motion
for rehearing is required in order to exhaust administrative remedies. The
filing of a motion to set aside the default order and reopen the record 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 applicable provisions of the Government Code, Chapter 2001,
Subchapter F.
Notes
State regulations are updated quarterly; we currently have two versions available. Below is a comparison between our most recent version and the prior quarterly release. More comparison features will be added as we have more versions to compare.
No prior version found.