31 Tex. Admin. Code § 2.8 - Discovery

(a) Parties to a contested case hearing shall have the discovery rights provided in the APA and applicable agency statutes and rules.

(b) Requests for issuances of subpoenas or commission should be directed to the administrative hearings clerk.

(c) All discovery requests should be initially directed to the party from which discovery is being sought.

(d) All disputes with respect to any discovery matter shall be filed with the administrative hearings clerk and heard by the administrative law judge.

(e) All parties will be afforded a reasonable opportunity to file objections or move for a protective order with respect to the issuance of a subpoena or commission.

(f) Permissible forms of discovery by parties are:

(1) oral depositions of a party or nonparty;

(2) written interrogatories to a party;

(3) requests of a party for admission of facts or the genuineness or identity of documents or things;

(4) requests of a party for production, examination and copying of documents or other tangible materials; and

(5) requests of a party for entry upon and examination of real or personal property, or both.

(g) The scope of discovery shall be the same as provided by the Texas Rules of Civil Procedure and shall be subject to the constraints provided therein for privileges, objections, protective orders and duty to supplement as well as the constraints provided in APA, §14 and §14a.

(h) Responses to discovery requests shall be made within a reasonable time period of not less than 14 days after service as directed by the party seeking discovery. The administrative law judge may shorten or lengthen such time periods as the interest of justice requires.

(i) Except as otherwise provided, requests for admission shall be governed by the applicable provisions of the Texas Rules of Civil Procedure. Each matter for which an admission is requested shall be separately stated. The matter shall be deemed to be admitted unless, within the prescribed time for responding, the party to whom the request is directed serves upon the requesting party a written answer or objection addressed to the matter. A request for admission must clearly set forth this provision for deemed admissions, in bold print or by underlining, in a conspicuous location calculated to fairly inform the opposing party of the consequences of a failure to respond within the prescribed time. The administrative law judge may permit withdrawal, or amendment of responses and deemed admissions upon a showing of good cause, if necessary in the interest of justice.

(j) The administrative law judge may issue protective orders and orders compelling discovery responses. Requests for discovery orders shall contain a statement under oath or affirmation that, after due diligence, the desired information cannot be obtained through informal means, and that good cause exists for requiring discovery. The administrative law judge may conduct in camera inspections of materials when requested by a party or when necessary to determine facts required to issue appropriate discovery orders. The request for a discovery order may be denied if the request is untimely or unduly burdensome in light of the complexity of the proceeding, if the requesting party has failed to exercise due diligence, if the discovery would result in undue cost to the parties or unnecessary delay in the proceeding, or for good cause in the interest of justice.

(k) After notice and opportunity for hearing, an order imposing sanctions, as are just, may be issued by the administrative law judge for failure to comply with a discovery order or subpoena issued pursuant to a commission for deposition or production of books, records, papers or other objects. The order imposing sanctions may:

(1) disallow any further discovery of any kind or of a particular kind by the non-complying party;

(2) require the party, the party's representative or both to obey the discovery order;

(3) require the party, the party's representative or both to pay reasonable expenses, including attorney fees, incurred by reason of the party's noncompliance;

(4) direct that the matters regarding which the discovery order was made shall be deemed established in accordance with the claim of the party obtaining the order;

(5) refuse to allow the non-complying party to support or oppose designated claims or defenses or prohibit the party from introducing designated matters in evidence;

(6) strike pleadings or parts thereof or abate further proceedings until the order is obeyed; or

(7) if entered by the commissioner, dismiss the action or proceeding or any part thereof or render a decision by default against the non-complying party.

Notes

31 Tex. Admin. Code § 2.8

The provisions of this §2.8 adopted to be effective January 9, 2003, 28 TexReg 479