34 Tex. Admin. Code § 67.43 - Dismissal without Hearing
(a) Motions for
dismissal without a hearing may be filed and ruled upon by the Executive
Director, when the matter is pending before ERS, or by the Examiner, when the
matter is pending before the Examiner, for any of the following reasons:
(1) failure to prosecute a claim;
(2) unnecessary duplication of Proceedings or
res judicata;
(3) withdrawal or
voluntary dismissal of appeal;
(4)
moot questions or obsolete petitions;
(5) following a Member's request for a refund
of his retirement account, or other matters establishing a lack of
jurisdiction;
(6) upon agreement of
the Parties pursuant to §
67.11 of this chapter (relating to
agreements to be in writing);
(7)
failure to execute a release pursuant to §
67.5(a) of this
chapter (relating to appeals);
(8)
failure to appear at any hearing for which notice has been served; or
(9) assertion of a baseless appeal as
provided by Rule 91a of the Texas Rules of Civil Procedure with respect to the
procedures for dismissal of a baseless cause of action.
(b) The Examiner shall, and the Board, its
designee, or the Executive Director may, dismiss the appeal of any Person who
has filed written notice of the appeal but who defaults by:
(1) failing to personally appear at any
hearing if the Appellant is not represented by an Authorized Representative
unless such appearance is waived by agreement of all the Parties pursuant to
§
67.11 of this chapter;
(2) failing to personally appear at any
hearing if the Appellant is represented by an Authorized Representative unless
the Appellant gives written notice at least ten (10) days prior to the date of
the hearing that the Appellant will not personally appear or unless such
appearance is waived by agreement of all Parties pursuant to §
67.11 of this chapter;
or
(3) failing to request a hearing
or to take some other action specified by the Examiner or Executive Director
within thirty (30) days after notice is mailed of intention to dismiss the
claim.
(c) The Board,
its designee, or the Executive Director may dismiss an appeal for any of the
reasons described in subsection (a) of this section. A dismissal of an appeal
by the Board, its designee, or the Executive Director constitutes final Agency
action on the appeal and no administrative appeal from the decision is
available.
(d) All dismissals by an
Examiner under this section are mandatory and shall be unconditional. Upon a
timely motion to reinstate and a showing of good cause, the Executive Director
may, in his/her sole discretion, thereafter permit reinstatement of an appeal
dismissed for failure to prosecute a claim. A motion to reinstate may not be
filed later than thirty (30) days from the date the Order of dismissal is
served. An Order denying a motion to reinstate constitutes final Agency action
and no administrative appeal from the decision is available.
Notes
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