40 Tex. Admin. Code § 730.1309 - Action by Hearing Officer

(a) Postponement. In food stamp cases, the appellant is entitled to receive one fair hearing postponement of up to 30 days. The time limit for action on the decision may be extended by as many days as the fair hearing is postponed. Other fair hearings may be postponed by the hearing officer if there is a reasonable cause. If possible, the appellant should file a written request for postponement of the fair hearing at least two days before it is scheduled to occur, unless unusual circumstances exist. The hearing officer then resets the fair hearing.

(1) The hearing officer decides if there is a valid reason for postponement or, in a food stamp appeal, if the appellant is entitled to a postponement.

(2) If there is reasonable doubt that the appellant or a member of his immediate family is too ill to appear, the hearing officer may ask the appellant to furnish a statement from a physician.

(3) The hearing officer may decide that a requested postponement cannot be granted, either because the appellant is not entitled to it in a food stamp appeal or because there is not reasonable cause. The hearing officer must document his decision in writing and send it to the appellant.

(b) Dismissal.

(1) If the appellant is not receiving continuing benefits and the appellant or representative does not appear for the fair hearing and gives no reason, the hearing officer must contact the appellant. If the appellant does not reply within 10 days, the hearing officer summarizes and records the facts. If the case record alone clearly shows that the worker's decision should be reversed, the hearing officer may enter a decision for the appellant. In all other cases, the hearing officer dismisses the appeal on the basis that the request for a fair hearing has been abandoned by the appellant.

(2) If the appellant is receiving continuing benefits and the appellant or his representative does not appear for the fair hearing and gives no reason, the hearing officer dismisses the appeal. He notifies the appellant that the worker's recommended action will become effective. If the hearing officer notes error(s) that affect the recommended decision of the worker, the hearing officer notifies the appellant and the worker so that appropriate action is taken to correct the error(s).

(c) Withdrawn appeal.

(1) Once an appeal is filed, only the appellant or representative can withdraw the request. The appellant must make the request in writing to the hearing officer or the local office and give the reason for the withdrawal.

(2) The appellant may verbally request the hearing officer to withdraw the appeal, but must confirm the request in writing. If the appellant does not provide a written request, the hearing officer writes the appellant to ask for a written withdrawal. The appellant is informed that if he does not within 15 days, the appeal will be withdrawn based upon the original verbal request.

(3) If the hearing officer accepts the withdrawal, he sends a letter to the appellant stating that the withdrawal is accepted. If the hearing officer believes the appellant was improperly induced or influenced to withdraw the request for a fair hearing, he advises the appellant to reconsider withdrawing the appeal.

(4) If an appellant dies during the appeal process, the legal representative of the decedent's estate must pursue the appeal, or the hearing officer may consider the appeal withdrawn. A food stamp appeal may not be considered withdrawn until a household member or representative gives the department written notice to withdraw the appeal.

(d) Recessed fair hearings.

(1) The hearing officer recesses the fair hearing if the appellant requests a delay to prepare the case or for other essential reasons. Requested information is furnished to the appellant or his representative before reconvening the fair hearing.

(2) If the hearing officer is unable to make a decision on the basis of the information, he may recess the fair hearing and advise the appellant of the reason for the recess and of the additional information that is required. The fair hearing is reconvened for a discussion of the additional information and is recorded as in the initial fair hearing.

(3) The hearing officer should recess the fair hearing if the hearing officer considers it necessary to consult a collateral source (including the worker or technician) for information or testimony. The fair hearing is reconvened to share the pertinent information or testimony with the appellant or to hear the testimony of the witness.

Notes

40 Tex. Admin. Code § 730.1309

The provisions of this §730.1309 adopted to be effective April 3, 1987, 12 TexReg 954; duplicated effective September 1, 1992, as published in the Texas Register September 11, 1992, 17 TexReg 6279.