40 Tex. Admin. Code § 705.1527 - How is the EMR conducted?
(a)
The hearing is similar to a civil court trial, but is less formal. The parties
to the hearing are the employee and DFPS.
(b) The hearing is conducted by an
administrative law judge who has the duty to provide a fair and impartial
hearing and to ensure that the available and relevant testimony and evidence
are presented in an orderly manner. The administrative law judge has authority
to administer oaths, issue subpoenas, and order discovery.
(c) Prior to the hearing, the employee may
request a copy of the investigation record, edited to remove the identity of
the reporter and any other confidential information to which the employee is
not entitled. The administrative law judge will only issue subpoenas or order
additional discovery upon request of a party and a finding of good cause for
the issuance or order.
(d) Both
parties will be given the opportunity to present their own testimony and
evidence, as well as the testimony and evidence of witnesses. Any person who
provides testimony at the hearing will be sworn under oath.
(e) Both parties will be given the
opportunity to examine the evidence presented by the other party, to
cross-examine any witnesses presented by the other party, and to rebut or
respond to the evidence presented by the other party.
(f) Testimony of a witness may be presented
by written affidavit, but may be given less weight than the credible testimony
of a witness who testifies in person, under oath, subject to
cross-examination.
(g) Presentation
of evidence at the hearing is not restricted under the rules of evidence used
in civil cases. The administrative law judge will admit evidence if it is of a
type on which a reasonably prudent person commonly relies in the conduct of the
person's affairs. Evidence will not be admitted if it is irrelevant,
immaterial, unduly repetitious, or precluded by statutory law.
(h) Both parties have the right to be
represented at the hearing by a person of their choosing who may be, but is not
required to be, an attorney.
(i)
The administrative law judge will assist either party in presenting their
evidence and testimony, as needed, to ensure that a complete and proper record
is developed at the hearing.
(j)
The administrative law judge will arrange to have an interpreter available for
the hearing if a party or witness requires an interpreter in order to
effectively participate in the hearing.
(k) The hearing will be recorded by audio or
video tape in order to preserve a record of the hearing. A transcription of the
hearing tape will not be made or provided unless an employee seeks judicial
review, as provided in this subchapter. The costs of transcribing the testimony
and preparing the record for judicial review shall be paid by the party who
files for judicial review, unless the party establishes indigence as provided
in Rule 20 of the Texas Rules of Appellate Procedure.
(l) The hearing is closed to the general
public consistent with the required statutory confidentiality of DFPS records.
Only the employee, the employee's representative, and any testifying witnesses
may attend the hearing.
Notes
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No prior version found.