(a) The timely filing of a motion for rehearing is
a prerequisite to appeal. A decision is final, in the absence of a
timely motion for rehearing, on the expiration of the period for filing
a motion for rehearing. A decision is final and appealable on the
date the order overrules a motion for rehearing, or on the date the
motion for rehearing is overruled by operation of law.
(b) Motions for rehearing are controlled by Texas Government
Code, §§2001.145 - 2001.147 and this section.
(c) A motion for rehearing shall set forth the particular
finding of fact, conclusion of law, ruling, or other action which
the complaining party asserts caused substantial injustice to the
party and was in error, such as violation of a constitutional or statutory
provision, lack of authority, unlawful procedure, lack of substantial
evidence, abuse of discretion, other error of law, or other good cause
specifically described in the motion. In the absence of specific grounds
in the motion, the Commission shall presume that the motion should
be overruled.
(d) Any party may request oral arguments before the
Commission prior to the final disposition of the motion for rehearing.
Oral arguments will be conducted in accordance with paragraphs (1)
- (5) of this subsection.
(1) The chairperson or the member designated by the
chairperson to preside (the presiding member) shall announce the case.
Upon the request of any party, the presiding member may conduct a
prehearing conference with the parties and their attorneys of record.
The presiding member may announce reasonable time limits for any oral
arguments to be presented by the parties.
(2) The hearing on the motion shall be limited to a
consideration of the grounds set forth in the motion. Testimony by
affidavit or documentary evidence, such as excerpts of the record
before the presiding officer, may be offered in support of, or in
opposition to, the motion; provided, however, a party offering affidavit
testimony or documentary evidence must provide the other party with
copies of the affidavits or documents at the time the motion is filed.
New evidence may not be presented on the substance of the case unless
the party submitting the evidenced can establish that the new evidence
was not reasonably available at the time of the original hearing,
or the party offering the evidence was misled by a party regarding
the necessity for offering the evidence at the original hearing.
(3) In presenting oral arguments, the party filing
the motion will have the burden of proof and persuasion and shall
open and close. The party responding to the motion may offer rebuttal
arguments. Parties may request an opportunity for additional rebuttal,
subject to the discretion of the presiding member.
(4) After being recognized by the presiding member,
the members of the Commission may ask questions of the parties. If
a party is represented by counsel, the questions must be directed
to the party's attorney. Questions must be limited to the grounds
asserted for the motion to be granted and to the arguments made by
the parties.
(5) Upon the conclusion of oral arguments, questions
by the members of the Commission, and any discussion by the member
of the Commission, the presiding member shall call for a vote on the
motion. A member of the Commission need not make a separate motion
or second a motion filed by a party. The presiding member may vote
on the motion. A motion may be granted only if a majority of the members
present and voting vote in favor of the motion. In the event of a
tie vote, the presiding member shall announce that the motion is overruled.
(e) A petition for judicial review must be filed in
a District Court of Travis County Texas within 30 days after the order
is final and appealable, as provided by Texas Government Code, Title
10, Subtitle A, Chapter 2001. A party filing a petition for judicial
review must also comply with the requirements of Texas Occupations
Code, §1101.707.
(f) A party who appeals a final decision in a contested
case must pay all costs for the preparation of the original or a certified
copy of the record of the agency proceeding that is required to be
transmitted to the reviewing court.
(g) If, after judicial review, the administrative penalty
is reduced or not assessed, the Administrator shall remit to the person
charged the appropriate amount, plus accrued interest if the administrative
penalty has been paid, or shall execute a release of the bond if a
supersedeas bond has been posted. The accrued interest on amounts
remitted by the Administrator under this subsection shall be paid
at a rate equal to the rate charged on loans to depository institutions
by the New York Federal Reserve Bank, and shall be paid for the period
beginning on the date that the assessed administrative penalty is
paid to the Commission and ending on the date the administrative penalty
is remitted.
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Source Note: The provisions of this §533.8 adopted to be effective December 30, 2007, 32 TexReg 9987; amended to be effective September 1, 2010, 35 TexReg 7797; amended to be effective November 29, 2012, 37 TexReg 9363; amended to be effective May 21, 2014, 39 TexReg 3856 |