| (a) Authority to Conduct. On their own motion or on
receipt of a complaint regarding the actions of an occupational licensee,
the stewards and racing judges may conduct a disciplinary hearing
regarding the licensee's actions.
(b) Notice of Hearing. Except as otherwise provided
by the Rules, the stewards and racing judges shall provide written
notice to a person who is the subject of a disciplinary hearing at
least 10 calendar days before the hearing. Notice given under this
subsection must state the nature of the charges against the person
and the possible penalties that may be imposed. The stewards and racing
judges or their designee may hand deliver the written notice of the
disciplinary hearing to the licensee who is the subject of the hearing.
Alternatively, the stewards and racing judges may provide the notice
by sending it by both certified mail, return receipt requested, and
regular mail to the licensee's last known address as found in the
Racing Commission's licensing records. The stewards and racing judges
may also send the notice by electronic mail provided that the Commission
verifies receipt by the licensee. The person may waive his or her
right to 10 days notice. Nonappearance of a licensee to whom notice
has been provided under this subsection shall be deemed a waiver of
the right to a hearing before the stewards or racing judges.
(c) Rights of the Licensee. At a disciplinary hearing
conducted by the stewards or racing judges, the person who is the
subject of the disciplinary hearing has the following rights, all
of which the person may waive:
(1) the right to counsel;
(2) the right to present a defense;
(3) the right to make an opening and closing statement;
(4) the right to call witnesses; and
(5) the right to cross-examine witnesses testifying
against the person.
(d) Evidence.
(1) Each witness at a disciplinary hearing conducted
by the stewards or racing judges must be sworn by the presiding steward
or racing judge.
(2) To facilitate participation by licensees, the stewards
and racing judges may permit witnesses to testify at a disciplinary
hearing via telephone if the stewards or racing judges make reasonable
assurances that the person testifying is who he or she purports to
be.
(3) The stewards and racing judges shall make a record
of a disciplinary hearing.
(4) The stewards and racing judges shall allow a full
presentation of evidence and are not bound by the technical rules
of evidence. However, the stewards and racing judges may disallow
evidence that is irrelevant or unduly repetitive of other evidence.
The stewards shall have the authority to determine, in their sole
discretion, the weight and credibility of any evidence and/or testimony.
The stewards and racing judges may admit hearsay evidence if the stewards
and racing judges determine the evidence is of a type that is commonly
relied on by reasonably prudent people. The rules of privilege recognized
by state law apply in hearings before the stewards and racing judges.
Hearsay evidence that is not otherwise admissible under the exceptions
of the Texas Rules of Evidence is an insufficient basis alone for
a ruling.
(e) Burden of Proof. The burden of proof is on the
person bringing the complaint to show, by a preponderance of the evidence,
that the licensee has violated or is responsible for a violation of
the Act or a Commission rule.
(f) Continuances.
(1) Upon receipt of a notice, a person may request
a continuance of the hearing.
(2) For good cause shown, the stewards or racing judges
may grant a continuance of any hearing for a reasonable period of
time.
(3) The stewards or racing judges may at any time order
a continuance on their own motion.
(g) Agreed Settlement. The person who is the subject
of the disciplinary hearing may waive the right to a hearing and subsequent
appeal and enter into an agreed settlement with the stewards or racing
judges.
(h) Failure to Appear. The stewards or racing judges
may suspend the license of a person who fails to appear at a disciplinary
hearing after receiving written notice of the hearing until the matter
is adjudicated.
(i) Summary Suspension. If the stewards or racing judges
determine that a licensee's actions constitute an immediate danger
to the public health, safety, or welfare, the stewards or racing judges
may enter a ruling summarily suspending the license, without a prior
hearing. A summary suspension takes effect immediately on issuance
of the ruling. If the stewards or racing judges suspend a license
under this subsection, the licensee is entitled to a hearing on the
suspension not later than seven calendar days after the day the license
is suspended. The licensee may waive his or her right to a hearing
on the summary suspension within the seven-day period.
(j) Discovery.
(1) Prior to a disciplinary hearing, upon written request
served on the opposing party, a party shall be entitled, subject to
the limitations in §2.15 of the Act, to:
(A) the name and address of any witness who may be
reasonably expected to testify on behalf of the opposing party, together
with a brief summary of the subject matter of each witness's anticipated
testimony; and
(B) copies of all documents or other materials in the
possession or control of the opposing party that the opposing party
reasonably expects to introduce into evidence in either its case-in-chief
or in rebuttal.Rebuttal documents, to the extent that they are not
immediately identifiable, shall be tendered to the opposing party
forthwith upon identification.
(2) A party may obtain discovery only by making a written
request for the production of witness lists, documents, and other
materials, as provided in paragraph (1) of this subsection.
(3) The stewards and racing judges may exclude from
a disciplinary hearing any witnesses, documents, and other materials
that were not properly disclosed in accordance with this subsection
unless good cause is shown for the failure to disclose them.
(4) Discovery requests under this section shall not
be cause for postponement or delay of a disciplinary hearing or of
the disposition of the proceedings.
|
| Source Note: The provisions of this §307.62 adopted to be effective January 1, 2002, 26 TexReg 10530; amended to be effective March 28, 2011, 36 TexReg 1980; amended to be effective May 8, 2016, 41 TexReg 3303; amended to be effective March 8, 2017, 42 TexReg 1024 |
