| (a) In-house hearings. In a hearing conducted by an
administrative law judge employed or contracted by an agency, if,
after served with notice in compliance with §9.11 of this title
(relating to Notice and Initiation of Proceedings), a party fails
to attend a hearing, the administrative law judge may proceed in that
party's absence and, where appropriate, may issue a proposal for decision
against that party. The proposal for decision shall be served upon
the defaulting party and the party will be afforded the opportunity
to contest the law as stated in the proposal for decision, but shall
be deemed to have waived the right to contest the evidence, cross-examine
the witnesses, and present an affirmative case or defense. In the
alternative, an agency may informally dispose of the matter as permitted
by §2001.056 of the Texas Government Code, without the necessity
of a hearing.
(b) SOAH hearings. In a hearing conducted by the State
Office of Administrative Hearings (SOAH), the agency may request that
the administrative law judge make a finding of default under 1 TAC
§155.501 (relating to Default Proceedings).
(1) Service of notice of hearing. A notice of hearing
may be served to the party's last known address. Applicants and holders
of licenses, registrations, charters, and permits shall keep the agency
informed as to their correct current mailing addresses and may be
served with initial process by registered or certified mail, return
receipt requested, to the address provided to the agency.
(2) Adequate proof of notice of hearing. At the time
of the request, the agency must present adequate proof to the administrative
law judge that the agency properly served the party with the notice
of hearing, as required by 1 TAC §155.501(b).
(3) Effect of default. If the administrative law judge
receives the required showing of proof to support a default, the allegations
contained in the notice of hearing may be deemed admitted, and the
relief sought in the notice may be granted with respect to any party
given proper notice of the hearing.
(4) Disposing of default case. The agency may request
that the administrative law judge dismiss the case from the SOAH docket
and remand it to the agency for informal disposition as permitted
by Texas Government Code, §2001.056 and §2001.058(d-1).
(5) Final order after default. If the administrative
law judge issues a conditional order of dismissal and remand that
provides the defaulting party with adequate notice and opportunity
to set aside the default under 1 TAC §155.501(e) and the conditional
order of dismissal and remand has become final, the agency may issue
a final order that:
(A) finds that the agency served the party with a notice
of hearing stating that if the party failed to attend the hearing,
then the allegations contained in the notice of hearing could be deemed
admitted, and the relief sought might be granted;
(B) describes how the notice of hearing was served
on the party;
(C) finds that the party failed to attend the hearing;
(D) finds that the allegations described in the notice
are deemed admitted;
(E) concludes that the party has defaulted as a matter
of law; and
(F) grants the relief described in the notice of hearing.
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| Source Note: The provisions of this §9.12 adopted to be effective November 13, 1997, 22 TexReg 10951; amended to be effective January 7, 2016, 41 TexReg 107; amended to be effective September 7, 2017, 42 TexReg 4459 |
