| (a) If a party fails to appear for the hearing, the
opposing party may move to proceed in that party's absence on a default
basis.
(b) A motion for a default proceeding under this section
must be supported by adequate proof of the following:
(1) the notice of hearing included a disclosure in
at least 12-point, bold-face type that the factual matters asserted
in the notice or pleadings could be deemed admitted and that the relief
sought might be granted by default against the party that fails to
appear at the hearing;
(2) the notice of hearing satisfies the requirements
of Tex. Gov't Code §2001.051 and §2001.052, and §155.401
of this chapter; and
(3) the notice of hearing and any pleadings sought
to be admitted were:
(A) issued or received by the defaulting party; or
(B) properly served to the defaulting party or their
attorney.
(c) In the absence of a motion for default or adequate
proof to support a default, the judge shall continue the case and
direct the party responsible to provide adequate notice of hearing.
If the responsible party persists in failing to provide adequate notice,
the judge may dismiss the case from the SOAH docket for want of prosecution.
(d) Upon receiving a motion for default and the required
showing of proof to support a default, the judge may grant the motion
and issue one of the following:
(1) Default dismissal. In default proceedings where
SOAH is not authorized by law to render a final decision in the proceeding,
upon motion for default dismissal, the judge may issue an order finding
adequate notice, granting a default dismissal based on facts deemed
to be admitted.
(2) Default proposal for decision. In default proceedings
where SOAH is not authorized by law to render a final decision in
the proceeding, upon motion for a default proposal for decision, the
judge may deem admitted the factual matters asserted in the notice
of hearing or the non-defaulting party's pleadings and issue a proposal
for decision.
(3) Default decision. In default proceedings where
SOAH is authorized by law to render a final determination in the proceeding,
upon motion for a default decision, the judge may deem admitted the
factual matters asserted in the notice of hearing or the non-defaulting
party's pleadings and issue a default decision.
(e) Default dismissals.
(1) An order of default dismissal issued under subsection
(d)(1) of this section shall inform the party of the opportunity to
have the default set aside under this subsection by filing an adequate
motion no later than 15 days after the issuance of the order of default
dismissal.
(2) If a motion to set aside a default dismissal is
filed within 15 days after the issuance of an order of default dismissal,
the judge will rule on the motion and either:
(A) grant the motion, set aside the default, and reopen
the hearing for good cause shown; or
(B) issue an order denying the motion and remand the
case to the referring agency for informal disposition on a default
basis in accordance with Tex. Gov't Code §2001.056.
(3) In the absence of a timely motion to set aside
a default, the case will be remanded to the referring agency for informal
disposition on a default basis in accordance with Tex. Gov't Code §2001.056
after the expiration of 15 days from the date of the order of default
dismissal.
(4) Dismissal under this section removes the case from
the SOAH docket without a decision on the merits.
(f) Default proposals for decision. A default proposal
for decision issued under subsection (d)(2) of this section is subject
to §155.507 of this chapter.
(g) Default decisions.
(1) Default decisions are subject to motions for rehearing
as provided for in the APA.
(2) A default decision issued under subsection (d)(3)
of this section shall inform the party of the opportunity to have
the default set aside by filing a motion for rehearing under Tex.
Gov't Code Chapter 2001, Subchapter F.
(h) Motions to Set Aside Default.
(1) A motion to set aside default under this section
shall set forth the grounds for reinstatement or rehearing and must
be supported by affidavit of the movant or their attorney that:
(A) the party had no notice of the hearing;
(B) the party had no notice of the consequences for
failure to appear; or
(C) although the party had notice, its failure to appear
was not intentional or the result of conscious indifference, but due
to reasonable mistake or accident that can be supported by adequate
proof; and
(D) a statement of whether the motion is opposed, and
if the motion is opposed, a list of dates and times for a hearing
on the motion that are agreeable to both parties.
(2) Whether or not the motion is opposed, the judge
may rule on the motion without setting a hearing or may set a hearing
to consider the motion. If the judge finds good cause for the defaulting
party's failure to appear, the judge shall vacate the default and
reset the case for a hearing.
|
| Source Note: The provisions of this §155.501 adopted to be effective November 26, 2008, 33 TexReg 9451; amended to be effective September 22, 2011, 36 TexReg 6257; amended to be effective January 1, 2017, 41 TexReg 8593; amended to be effective November 29, 2020, 45 TexReg 8295 |
