40 Tex. Admin. Code § 815.32 - Timeliness
(a) Unless
otherwise specified in this chapter, appeals time frames are generally
determined within these guidelines:
(1) as
established in the Texas Unemployment Compensation Act; and
(2) are extended one working day following a
deadline which falls on a weekend, an official state holiday, a state holiday
for which minimal staffing is required, or a federal holiday.
(b) Presumption of receipt. A
document mailed to a party is presumed to be received if the document was
mailed to the complete, correct address of record unless:
(1) there is tangible evidence of
nondelivery, such as the document being returned to the Agency by the United
States Postal Service; or
(2)
credible and persuasive evidence is submitted to the Agency to establish
nondelivery, delayed delivery, or misdelivery of the document.
(c) Address for proper mailing.
(1) For a claimant, the proper address is the
address given by the claimant to the Agency subject to later changes given by
the claimant to the Agency.
(2) For
an employer, the proper address is determined under §
815.3 of this chapter (relating to
Addresses) unless the employer has specifically requested a mailing address
change in a protest, appeal, or other correspondence, or at a
hearing.
(3) For governmental
employers, the group account address shall be used, if applicable.
(4) Mailing of notice to a party
representative, whether or not an attorney, is required to bind parties to
timeliness rules.
(5) If a party
provides the Agency with the party's own incorrect mailing address, an Agency
mailing to that address shall be a proper mailing, even if there is proof that
the document was never received by the party.
(6) The Agency is not responsible for
effectuating an address change when it is listed in correspondence or merely
listed by a party on an appeal filed in person, unless the Agency is
specifically directed by the party to mail subsequent notices to the
address.
(7) If the Agency
improperly addresses a document, the time frame for filing an appeal shall
begin to run as of the actual date of receipt by the party, even if received by
the party within the statutory appeal time frame. However, this subsection does
not apply if the party provided an incorrect address under subsection (c)(5) of
this section.
(8) Addresses shall
be positively verified by hearing officers, who shall also explain to parties
the importance of the address being correct and the fact that subsequent appeal
deadlines run from the date of mailing, not the date of receipt by the
party.
(d) Receipt Date.
(1) Receipt date is date of receipt at the
earliest of an Agency, or agent state office, or a workforce center or a Board
office.
(2) If an appeal is
received at an agent state office or a workforce center or a Board office(s),
but the appeal is not dated by the receiving entity, and is forwarded to the
appeals (or interstate) processing unit and is dated by that unit, then the
appeal date shall be set at three business days earlier than receipt in appeals
(or interstate).
(e)
Appeal Date.
(1) The appeal date for a
document received via United States Postal Service shall be the postmark date
or the postal meter date (where there is only one or the other); but where
there is both a postmark date and a postal meter date and they conflict, the
postmark date controls.
(2) The
date a document is delivered to a common carrier (such as Federal Express,
Purolator, or other common carrier) controls as the date the appeal is
perfected. (Delivery to carrier is equivalent to delivery to United States
Postal Service; date of delivery to carrier is equivalent to postmark
date.)
(3) An appeal received in an
envelope bearing no legible postmark or postal meter date shall be considered
to be perfected three business days before receipt by the Agency, or on the
date of the document, if the document date is less than three days earlier than
date of receipt.
(4) If the mailing
envelope is lost after delivery to the Agency, appeal document date shall
control. If the document is undated, appeal date shall be three business days
before receipt by the Agency, subject to sworn testimony establishing an even
earlier date.
(5) If a
determination, decision or other written material provides for an appeal by
fax, or in an electronic form approved by the Agency in writing, then the
appeal date shall be the date and time the appeal is received by the
Agency.
(f) Sworn
testimony can establish a date for an appeal being perfected, which is earlier
than the dates established under subsections (d) and (e) of this section. Only
in the face of extremely credible evidence shall a party be allowed to
establish an appeal date earlier than a postal meter date, or the date of the
document itself. When a party alleges filing an appeal which the Agency has
never received, the party must present credible and persuasive testimony of
timely filing corroborated by testimony of a disinterested party and/or
physical evidence specifically linked to the appeal in question.
(g) Credible and persuasive testimony subject
to cross-examination establishing timeliness allows the Agency or the appeal
tribunal to rule on the merits.
(h)
If a party submits an address change to the Agency during the appeal period
(but after the Agency document was mailed to the old address), address change
date shall control and shall be considered as the date the appeal was
perfected.
(i) Exceptions. The
substantive nature of certain cases causes, or creates, exceptions to the
general timeliness rules, even where notice is proper or response is clearly
late.
(1) Cases fitting into the wage
credits/validity of claim category present a one-time exception to the
timeliness rules. A late appeal to the appeal tribunal on the issues, if within
the same benefit year, shall be deemed timely. However, once a decision has
been issued by the appeal tribunal, the appeal time limits in the Act, Chapter
212, shall apply.
(2) In cases
dealing with the imposition of fraud and forfeiture provisions of the Act,
§214.003, there is a one-time exception at the appeal tribunal stage, if:
(A) the claimant is out of claim status;
and
(B) if the claimant has
moved.
(3) In cases
where there is a continuing ineligibility or condition and there is a late
appeal, the appeal tribunal or the Commission can assume jurisdiction 14 days
before the late appeal, and rule on the merits if the facts so
warrant.
(4) If a chargeback ruling
is required, but is omitted, the determination or decision does not become
final for the employer; it does become final for the claimant.
(5) In a case where it is ultimately
determined that there has been no separation from employment, all rulings are
void and all rulings can be set aside at any time.
(6) When there has been a ruling protecting
an employer's account on a separation in one benefit year, the employer is not
required to timely protest or appeal a ruling on the same separation in a
subsequent year.
(7) Timeliness
sanctions shall not apply when an Agency representative or a representative of
a Board or an agent state representative has given misleading information on
appeal rights to a party, if the party:
(A)
specifically establishes how the party was misled; or
(B) specifically establishes what the party
was told that was misleading and, if possible, by whom the party was
misled.
(8) There is no
good cause exception to the timeliness rules.
Notes
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