37 Tex. Admin. Code § 4.17 - Notification and Hearing Processes
(a)
Notification.
(1) The department will notify
a motor carrier of an enforcement action by the issuance of a claim letter as
described in §
4.16(a)(4) of
this title (relating to Administrative Penalties, Payments, Collection and
Settlement of Penalties).
(2) The
notification may be submitted to the motor carrier's last known address as
reflected in the records of the department by certified mail, return receipt
requested, or personal service, or another manner of delivery that records the
receipt of the notice by the person responsible. Electronic mail may be used
provided the department verifies receipt by the person responsible. A
notification sent by mail shall be presumed to have been received by the motor
carrier five days after the date of the mailing.
(3) The motor carrier shall respond within 20
calendar days of receipt of the claim letter with one of the following options:
(A) Payment of the claim in the full amount
as outlined in the claim letter; or
(B) Request, in writing, to make installment
payments; or
(C) Request, in
writing, an informal hearing; or
(D) Request, in writing, an administrative
hearing.
(4) A request
under paragraph (3)(C) or (D) of this subsection must contain the following:
(A) A concise statement of the issues to be
presented at the hearing, including the occurrence of the violations, the
amount of the penalty, or both;
(B)
defenses the carrier asserts to the department's claim; and
(C) supporting documents to show defenses
and/or financial condition of the carrier.
(5) A request under paragraph (3)(C) of this
subsection that does not contain the information required in paragraph (4) of
this subsection may, after notice and a reasonable opportunity to correct the
defect, be set for an administrative hearing rather than an informal hearing,
at the discretion of the department.
(b) Informal hearing.
(1) If requested, the department will hold an
informal hearing to discuss a penalty recommended under this section. Such
hearing will be scheduled and conducted by the manager of the Motor Carrier
Bureau or the director's designee.
(2) An informal hearing shall not be subject
to rules of evidence and civil procedure except to the extent necessary for the
orderly conduct of the hearing. The department will summarize the nature of the
violation and the penalty, and discuss the factual basis for such. The motor
carrier will be afforded an opportunity to respond to the allegations verbally
and/or in writing.
(3) After the
conclusion of the informal hearing, the department will issue a Memorandum of
Decision, which will be provided to the motor carrier. The Memorandum of
Decision will contain the following:
(A) a
statement of findings by the department, including a statement of dismissal of
charges, modification of penalties, or affirmation of penalties; and
(B) if the penalties are modified or
affirmed, the Memorandum of Decision will be accompanied by a revised claim
letter requiring the motor carrier to respond within 20 calendar days of
receipt of claim letter with one of the following options:
(i) Payment of the claim in the full amount
as outlined in the claim letter; or
(ii) Request to make installment payments;
or
(iii) Request an administrative
hearing before the State Office of Administrative Hearings.
(c)
Administrative Hearing.
(1) If the motor
carrier requests an administrative hearing, as required by subsection (a)(3)(D)
or (b)(3)(B)(iii) of this section, the department shall request an
administrative hearing before the State Office of Administrative Hearings. The
department will provide written notice by certified mail, return receipt
requested, or by personal service of such action to the motor carrier. The
administrative law judge for the State Office of Administrative Hearings shall
issue a proposal for decision setting out the judge's findings of fact,
conclusions of law and recommendations in accordance with agency rules and
statutes, including a recommendation regarding the award and amount of costs,
fees, expenses, and reasonable and necessary attorney's fees incurred by the
state.
(2) The director may adopt
those findings and make it part of the director's order; or the director may,
pursuant to §
2001.058(e),
Texas Government Code, increase or decrease the amount of the penalty
recommended by the administrative law judge. Notice of the director's order and
proposal for decision shall be given to the affected person as required by
Chapter 2001, Texas Government Code, and must include a statement that the
person is entitled to seek a judicial review of the order. Before the 31st
calendar day after the date the director's order becomes final as provided in
§
2001.004, Texas
Government Code, the person must:
(A) pay the
penalty in full;
(B) pay the
penalty in full and file a petition for judicial review contesting:
(i) the occurrence of the
violation(s);
(ii) the amount of
the penalty; or
(iii) both the
occurrence of the violation(s) and the amount of the penalty.
(C) without paying the penalty,
file a petition for review contesting:
(i)
the occurrence of the violation(s);
(ii) the amount of the penalty; or
(iii) both the occurrence of the violation(s)
and the amount of the penalty.
(3) A contested case under this subsection
will be governed by Texas Government Code, Chapter 2001, subchapters C and D,
Texas Transportation Code, §
644.153, and 37
TAC, Chapter 29 of this title (relating to General Rules of Practice and
Procedure), and not by Title 49, Code of Federal Regulations, Part 386,
Subparts D and E.
(d) A
final department decision is subject to judicial review under the substantial
evidence rule, Texas Government Code, §
2001.174. For
purposes of collection of the administrative penalty, Final Departmental
Decision is defined as:
(1) the most recent
claim letter issued to a motor carrier who fails to request an informal hearing
or an administrative hearing within 20 calendar days of receipt of the Notice
of Claim; or
(2) the most recent
claim letter issued to a motor carrier who fails to pay or becomes delinquent
in the payment of an administrative penalty as outlined in §
4.16 of this title (relating to
Administrative Penalties, Payment, Collection and Settlement of Penalties);
or
(3) a Final Order issued by the
director as a result of an administrative hearing as outlined in this
subchapter.
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.