(a) Purpose. The purpose of this rule is to provide
the procedural steps by which an appeal can be filed relating to Department
decisions as authorized by Tex. Gov't Code §2306.0321 and §2306.0504
which together require an appeals process be adopted by rule for the
handling of appeals relating to Department decisions and debarment.
Appeals relating to competitive low income housing tax credits, or
when multifamily loans are contemporaneously layered with competitive
low income housing tax credits, and the associated underwriting, are
governed by a separate appeals process provided at §11.902 of
this title (relating to Appeals Process) (§2306.0321; §2306.6715).
(b) Definitions. The following words and terms, when
used in this subchapter, shall have the following meanings, unless
the context clearly indicates otherwise. If not defined in this section,
capitalized terms used in this section have the meaning in the rules
that govern the applicable program under which the appeal is being
filed.
(1) Affiliated Party--An individual, corporation, partnership,
joint venture, limited liability company, trust, estate, association,
cooperative or other organization or entity of any nature whatsoever
that directly, or indirectly through one or more intermediaries, has
Control of, is Controlled by, or is under common Control with any
other Person. All entities that share a Principal are Affiliates.
(2) Appeal--An Appealing Party's notice to the Department
to challenge a decision or decisions made by staff and/or the Executive
Director regarding an Application, Commitment, Contract, Loan Agreement,
Debarment, Underwriting Report, or LURA as governed by this section.
(3) Appeal File--The written record of an Appeal that
contains the applicant's Appeal; the correspondence, if any, between
Department staff (or the Executive Director) and the Appealing Party;
and the final Appeal decision response provided to the Appealing Party.
(4) Appealing Party--The Administrator, Affiliated
Party, Applicant, Person, or Responsible Party under subchapter D, §2.102
of this title (relating to Enforcement Definitions) who files, intends
to file, or has filed on their behalf, an Appeal before the Department.
(c) Persons Eligible to Appeal. An Appeal may be filed
by any Administrator, Applicant, Person, or Responsible Party as provided
for in subchapter D, §2.102 of this title, or Affiliated Party
of the Administrator, Applicant, Person or Responsible Party who has
filed an Application for funds or reservation with the Department,
or has received funds or a reservation from the Department to administer.
(d) Grounds to Appeal Staff Decision. Appeals may be
filed using this process on the following grounds:
(1) Relating to applying for funds or requesting to
be approved for reservation authority an Appealing Party may appeal
if there is:
(A) Disagreement with the determination of staff regarding
the sufficiency or appropriateness of documents submitted to satisfy
evidence of a given threshold or scoring criteria, including the calculation
of any scoring based items;
(B) Disagreement with the termination of an application;
(C) Disagreement with the denial of an award or reservation
request;
(D) Disagreement with the amount of the award recommended
by the Department, unless that amount is the amount requested by the
Applicant;
(E) Disagreement with one or more conditions placed
on the award or reservation; or
(F) Concern that the documents submitted were not processed
by Department staff in accordance with the Application and program
rules in effect.
(2) Relating to issues that arise after the award or
reservation determination by the Board, an Appealing Party may appeal
if there is disagreement with a denial by the Department of a Contract,
payment, Commitment, Loan Agreement, or LURA amendment that was requested
in writing.
(3) When grounds for appeal are not evidenced or stated
in conformance with this Section, the Board or the Executive Director
may determine in their discretion that there is good cause for an
Appeal because due process interests are sufficiently implicated.
(4) Relating to debarment, a Responsible Party may
appeal a determination of debarment, as further provided for in §2.401(k)
of this title (relating to General).
(5) Affiliated Party Appeals. An Affiliated Party has
the ability to appeal only those decisions that directly impact the
Affiliated Party, not the underlying agreements. An Affiliated Party
may appeal a finding of failure to adequately perform under an Administrator's
Contract, resulting in a "Debarment" or a similar action, as further
described in chapter 2, subchapter D of this title, Debarment from
Participation in Programs Administered by the Department.
(e) Process for Filing an Appeal of Staff Decision
to the Executive Director.
(1) An Appealing Party must file a written Appeal of
a staff decision with the Executive Director not later than the seventh
calendar day after notice has been provided to the Appealing Party.
For purposes of this section, the date of notice will be considered
the date of an Application-specific written communication from the
Department to the Applicant; in cases in which no Application-specific
written communication is provided, the date of notice will be the
date that logs are published on the Department's website when such
logs are identified as such in the application including but not limited
to a Request for Proposals or Notice of Funding Opportunity, or in
the rules for the applicable program as a public notification mechanism.
(2) The written appeal must include specific information
relating to the disposition of the Application or written request
for change to the Contract, Commitment, Loan Agreement, and/or LURA.
The Appealing Party must specifically identify the grounds for the
Appeal based on the disposition of underlying documents.
(3) Upon receipt of an Appeal, Department staff shall
prepare an Appeal File for the Executive Director. The Executive Director
shall respond in writing to the Appealing Party not later than the
fourteenth calendar day after the date of receipt of the Appeal. The
Executive Director may take one of the following actions:
(A) Concur with the Appeal and make the appropriate
adjustments to the staff's decision;
(B) Disagree with the Appeal, in concurrence with staff's
original determination, and provide the basis for rejecting the Appeal
to the Appealing Party; or
(C) In the case of appeals in exigent circumstances
(such as conflict with a statutory deadline) or with the consent of
the appellant, for appeals received five calendar days or less of
the next scheduled Board meeting, the Executive Director may decline
to make a decision and have the appeal deferred to the Board per the
process outlined in subsection (f)(2) of this section, for final action.
(f) Process for Filing an Appeal of the Executive Director's
Decision to the Board.
(1) If the Appealing Party is not satisfied with the
Executive Director's response to the Appeal provided in subsection
(e)(3) of this section, they may appeal in writing directly to the
Board within seven calendar days after the date of the Executive Director's
response.
(2) In order to be placed on the agenda of the next
scheduled meeting of the Department's Board, the Appeal must be received
by the Department at least fourteen days prior to the next scheduled
Board meeting. Appeals requested under this section received after
the fourteenth calendar day prior to the Board meeting will generally
be scheduled at the next subsequent Board meeting. However, the Department
reserves the right to place the Appeal on a Board meeting agenda if
an Appeal that is timely filed under paragraph (1) of this subsection
is received fewer than fourteen calendar days prior to the next scheduled
Board meeting. The Executive Director shall prepare Appeal materials
for the Board's review based on the information provided.
(3) If the Appealing Party receives additional information
after the Executive Director has denied the Appeal, but prior to the
posting of the Appeal for Board consideration, the new information
must be provided to the Executive Director for further consideration
or the Board will not consider any information submitted by the Applicant
after the written Appeal. New information will cause the deadlines
in this subsection to begin again. The Board will review the Appeal
de novo and may consider any information properly considered by the
Department in making its prior decision(s).
(4) Public Comment on an Appeal Presented to the Board.
The Board will hear public comment on the Appeal under its Public
Comment Procedures in §1.10 of this subchapter (relating to Public
Comment Procedures). While public comment will be heard, persons making
public comment are not parties to the Appeal, and no rights accrue
to them under this section or any other Appeal process. Nothing in
this section provides a right to Appeal any decision made on an Application,
Commitment, Contract, Cont'd... |