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RULE §155.429Evidence

(a) Rules of evidence.

  (1) The Texas Rules of Evidence as applied in a nonjury civil case in district court govern contested case hearings conducted by SOAH.

  (2) Evidence may be admitted if it meets the standards set out in Tex. Gov't Code §2001.081.

(b) Physical evidence: Exhibits.

  (1) Paper size. Documents shall not be submitted on paper other than 8-1/2 x 11 inches unless good cause is shown that the documents cannot be reduced without loss of information, or if allowed by the judge.

  (2) Numbering of pages. A multipage document shall be paginated.

  (3) Physical limits.

    (A) Exhibits offered as evidence must not unduly encumber the records of SOAH by their size or other qualities.

    (B) Physical evidence that is bulky, dangerous, perishable, or otherwise not suitable for inclusion in agency records shall not be offered into the record.

    (C) A party seeking to admit an exhibit contrary to this section must make reasonable efforts to use photographs, recordings, or other mechanical or electronic means to substitute for physical evidence that would encumber SOAH's records.

    (D) Maps, drawings, blueprints, and other documents not reasonably susceptible to reduction shall be rolled or folded to avoid physically encumbering the record.

  (4) Numbering of exhibits.

    (A) Each exhibit to be offered shall first be numbered by the offering party or court reporter.

    (B) Copies of the original exhibit shall be furnished by the party offering the exhibit to the presiding judge and to each party present at the hearing unless otherwise ordered by the judge.

  (5) Excluded exhibits. An exhibit excluded from evidence will be considered withdrawn by the offering party and will be returned to the party, unless the party makes an offer of proof in accordance with the TRE.

  (6) Exhibits deemed withdrawn. Prefiled exhibits that are not offered and admitted at the hearing will be deemed withdrawn.

  (7) Non-conforming exhibits. The judge may exclude exhibits not conforming to this section.

(c) Prefiled evidence.

  (1) Prefiled testimony.

    (A) The judge may require that direct testimony of witnesses to be called at the hearing, and any exhibits to be presented through those witnesses, be filed in writing prior to hearing and served on other parties. The written testimony of a witness may be prepared in narrative or question-and-answer form.

    (B) Prefiled testimony and related exhibits shall be subject to evidentiary objections. The judge may require that objections to prefiled testimony of witnesses and related exhibits be submitted in writing, filed prior to hearing, and served on other parties.

    (C) After a witness has been sworn and has identified his or her written testimony as a true record of what the testimony would have been if given orally, the written testimony may be admitted into evidence at the hearing as if read or presented orally.

    (D) When written testimony is offered into evidence, the witness must attend the hearing for cross-examination, unless cross-examination is waived by the other parties.

    (E) A party may object to the prefiling of exhibits, testimony, and objections if the hearing will not be expedited and the interests of the parties will be substantially prejudiced by the entry of an order under this section.

  (2) Prefiled exhibits. The judge may require parties to prefile some or all exhibits and provide those exhibits to the other parties. The judge may also require that objections to prefiled exhibits be submitted in writing, filed prior to the hearing, and provided to other parties.

(d) Exclusion of witnesses.

  (1) At the request of either party or by the judge's own action, the judge may:

    (A) order witnesses excluded from the hearing room so that they may not hear the proceedings;

    (B) instruct the witnesses not to converse about the case with each other or any person other than the attorneys in the proceeding except by permission of the judge; and

    (C) instruct the witnesses not to read any report of, or comment upon, the testimony in the case while under order of this section.

  (2) This section does not authorize the exclusion of:

    (A) a party who is a natural person or the spouse of such natural person;

    (B) an officer or employee of a party that is not a natural person and who is designated by the party as its representative;

    (C) a person whose presence is shown by a party to be essential to the presentation of the party's case.

Source Note: The provisions of this §155.429 adopted to be effective November 26, 2008, 33 TexReg 9451; amended to be effective January 1, 2017, 41 TexReg 8593

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