(a) Every contested case hearing on an action before
the department shall be conducted by an administrative law judge.
(b) The administrative law judge presiding shall have
the authority to do the following:
(1) set hearing dates, times, and locations;
(2) convene the hearing at the date, time, and location
specified in the notice for such hearing;
(3) establish the jurisdiction of the department concerning
the matter under consideration;
(4) rule on motions and on the admissibility of evidence
and amendments to pleadings;
(5) designate parties and establish the order for presentation
of evidence;
(6) administer oaths to all persons presenting testimony;
(7) examine witnesses;
(8) issue subpoenas when required to compel the attendance
of witnesses, or the production of papers and documents relating to
the hearing, if the administrative law judge is employed by the department;
(9) commission and require the taking of depositions,
if the administrative law judge is employed by the department;
(10) ensure that information and testimony are introduced
as conveniently and expeditiously as possible without prejudicing
any rights of parties to the proceeding;
(11) conduct hearings in an orderly manner in accordance
with the Administrative Procedure Act and this chapter;
(12) recess any hearing from time to and from place
to place; and
(13) exercise any other appropriate powers necessary
or convenient to carry out his or her responsibilities.
(c) The administrative law judge shall have the authority
to conduct all or part of a hearing by videoconference or telephone
conference as follows.
(1) Upon motion of any party filed no less than five
days before any scheduled hearing, the administrative law judge may
order that the appearance of any party and/or the testimony of any
witness shall be taken by videoconference or telephone. If the motion
is filed less than five days before any scheduled hearing, it may
be granted by the administrative law judge upon a showing of good
cause.
(2) The party requesting witness testimony by videoconference
or telephone must provide the name(s) and contact information of the
person(s) from whom testimony is desired. The administrative law judge
may allow for the substitution of contact information at the hearing,
upon request and the showing of good cause by the party requesting
such substitution. In advance of the hearing, that party shall also
provide the witness(es) and other parties with true and correct copies
of any exhibits to be offered by that party or that party's witness(es)
or from which question(s) will be elicited.
(3) The party requesting the videoconference or telephone
conference shall bear the costs of the conference call incurred for
presenting that party's witnesses and/or case.
(d) In the case of a party's failure to comply with
a subpoena or commission to take deposition issued by an administrative
law judge employed by the department, the party requesting the subpoena
or commission may seek enforcement thereof pursuant to the APA, §2001.201.
(e) Upon finding that a party has failed to comply
with an administrative law judge's order or that a party has abused
orders compelling discovery entered pursuant to the APA or these rules,
the administrative law judge may impose sanctions for such noncompliance
or abuse in making, seeking, or resisting discovery. Sanctions may
include, but are not limited to, the following:
(1) recessing or continuing the hearing;
(2) denying the noncompliant person the right to participate
in the hearing for a period of time or prescribing conditions for
the person's participation;
(3) disallowing any further discovery of a particular
kind or of any kind by the noncompliant party (except for discovery,
if any, authorized by law over which the administrative law judge
has no discretion);
(4) disallowing, in part or whole, the noncompliant
party's presentation of evidence or examination of witnesses on issues
that were the subject of the discovery request;
(5) ruling that particular facts shall be regarded
as established for the purposes of the proceeding in accordance with
the claim of the party that obtained the discovery ruling or other
relevant order;
(6) disallowing written or documentary evidence to
be presented that was not exchanged by a deadline for exchange of
such evidence pursuant to §1.15 of this chapter (relating to
Prehearing Conference);
(7) disallowing the testimony of witnesses who were
not listed by a deadline established for listing potential witnesses
pursuant to §1.15 of this chapter (relating to Prehearing Conference);
(8) dismissing the case without prejudice; and
(9) assessing costs against the noncompliant party
as provided in the Texas Rules of Civil Procedure.
(f) If an administrative law judge employed by the
department fails to complete an assigned case before a proposal for
decision or final order is rendered, the General Counsel may appoint
a substitute administrative law judge to complete the assigned case
without the necessity of duplicating any duty or function performed
by the previous administrative law judge. The substitute administrative
law judge shall review the existing record and need not repeat previous
proceedings, but may conduct future proceedings as are necessary and
proper to conclude the hearing and render a proposal for decision
or final order.
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Source Note: The provisions of this §1.18 adopted to be effective January 18, 1991, 16 TexReg 113; amended to be effective August 3, 1993, 18 TexReg 4747; amended to be effective August 23, 1996, 21 TexReg 7656; amended to be effective December 8, 2022, 47 TexReg 8039 |