|(a) Purpose. In accordance with Tex. Gov't Code, §2306.082,
and as authorized by Tex. Gov't Code, §2009.051(c), the Department
encourages the use of appropriate Alternative Dispute Resolution ("ADR")
procedures under Tex. Gov't Code, Chapter 2009 to assist in the fair
and expeditious resolution of internal and external disputes under
the Department's jurisdiction. These ADR procedures are intended to
work in conjunction with the guidelines and rules of the State Office
of Administrative Hearings found at Tex. Gov't Code, Chapter 2001;
1 TAC Part 7, Chapter 155; and with Chapter 154, Civil Practice and
(b) Definitions. For purposes of this rule, terms used
herein shall have the following meaning:
(1) Alternative Dispute Resolution ("ADR")--a procedure
or combination of procedures described in Chapter 154, Civil Practice
and Remedies Code.
(2) Dispute Resolution Coordinator--One or more trained
persons employed by the Department, who may not be in the Legal Division,
designated by the Executive Director to coordinate and process requests
for the ADR procedures.
(3) Mediation--a dispute resolution procedure in which
an impartial person, the mediator, facilitates communication between
the parties to promote reconciliation, settlement, or understanding
among them. The mediator may not impose his or her own judgment on
the issues for that of the parties (§154.023(a) and (b), Texas
Civil Practice and Remedies Code).
(4) Impartial third party--A person who meets the qualifications
and conditions of Tex. Gov't Code §2009.053. An Impartial Third
Party must possess the qualifications required under the Texas Civil
Practice and Remedies Code §154.052 (a minimum of 40 classroom
hours of training in dispute resolution techniques), is subject to
the standards and duties prescribed by Texas Civil Practice and Remedies
Code §154.053 and has the qualified immunity prescribed by Texas
Civil Practice and Remedies Code §154.055 for volunteer third
parties not receiving compensation in excess of expenses, if applicable.
(Tex. Gov't Code §2009.053(d)).
(c) Preliminary Considerations.
(1) The Department encourages communication between
Department staff and applicants to the Department programs, and other
interested persons, to exchange information and informally resolve
(2) The Department has appeal procedures found at 10
TAC §1.7, and at 10 TAC §10.902. ADR procedures supplement
and do not limit any available procedure for the resolution of disputes
(Tex. Gov't Code §2009.052(a)). Pursuing an ADR procedure does
not suspend or delay application, appeal, or other deadlines. For
example, if a tax credit applicant desires to appeal a Department
decision using the procedures promulgated under §2306.6715 and
also desires to pursue an ADR procedure, the applicant may independently
pursue the two procedures. Each procedure will proceed independently
of the other. However, ADR does not suspend any statutory deadlines
or grant any additional authority to resolve issues beyond statute.
(3) Consistent with Tex. Gov't Code §2306.082(e),
the ADR procedure must be requested before the Department's Board
makes a final decision on an issue.
(4) Consistent with Tex. Gov't Code §2306.082(f),
the ADR procedure may not be used to unnecessarily delay an appeal
proceeding, or other deadline.
(d) Appropriateness of ADR
(1) Assessment of the Dispute. In determining whether
an ADR procedure is appropriate, the parties to the dispute, including
the Department, should consider the following factors:
(A) whether direct discussions and negotiations between
the parties have been unsuccessful and/or the parties believe there
is a misunderstanding involving the facts or interpretations that
could be improved with the assistance of an Impartial Third Party;
(B) whether the use of ADR potentially could use fewer
resources and take less time than other available procedures, and
that there is a reasonable likelihood that the use of ADR will result
in an agreement to resolve the dispute;
(C) whether there is a reasonable likelihood that the
use of ADR will result in an agreement to resolve the dispute, and
there are potential remedies or solutions that are only available
through ADR; and/or
(D) whether the need for a final decision with precedential
value is less important than other considerations. (Nothing herein
should be construed as creating a presumption that a final decision
establishes binding precedent in any given manner).
(2) The parties may also consider additional factors
found in the State Office of Administrative Hearings' ADR Model Guidelines
for assessing whether a dispute is appropriate for mediation.
(3) Independent of any proposal from interested parties
outside the Department, the Department may propose using ADR procedures
to interested parties to try to resolve a dispute.
(e) ADR Process
(1) Any applicant for Department programs or other
interested person may request the use of an ADR procedure to attempt
to resolve a dispute with the Department. The ADR request must be
submitted in writing to the Department's Dispute Resolution Coordinator
at the mailing address or email address listed on the Department's
website. The request for ADR must state the nature of the dispute,
the parties involved, any pertinent or impending deadlines, whether
all parties agree to refer the dispute to ADR, proposed times and
locations, and the preferred type of ADR procedure.
(2) If an applicant or other interested person is uncertain
whether to propose the possible use of ADR or is uncertain about any
particular aspect of a possible proposal, they should contact the
Department's Dispute Resolution Coordinator to discuss the matter.
(3) The ADR Coordinator will notify the person requesting
the ADR procedure that an ADR decision is not binding on the state
and that the Department will mediate in good faith.
(4) The ADR Coordinator will provide copies of the
request received, and all other materials received, to any other parties
to the dispute.
(5) The Dispute Resolution Coordinator shall provide
a copy of the ADR request to the Executive Director and General Counsel
and other applicable internal parties.
(6) The Dispute Resolution Coordinator will assess
whether ADR would assist in fairly and expeditiously resolving the
dispute and will notify all affected parties within seven calendar
days of receiving an ADR request of one of the following determinations:
(A) If the parties, including the Department, cannot
agree on whether an ADR procedure should be used or on the particulars
of the ADR procedure, the Dispute Resolution Coordinator will notify
both parties that agreement to utilize ADR could not be reached;
(B) If the Dispute Resolution Coordinator determines
not to refer the dispute to ADR, the Dispute Resolution Coordinator
shall state the reasons in writing; or
(C) If the Dispute Resolution Coordinator decides to
refer the dispute to ADR, the date for the selected ADR process will
be included in the notice.
(f) Selection of Mediator or Impartial Third Party.
(1) The Department designates the State Office of Administrative
Hearings ("SOAH") as the primary mediator for Department ADR requests
as required by Tex. Gov't Code §2306.082(b).
(2) If the Department and SOAH agree to utilize an
Impartial Third Party other than one so designated through SOAH, an
Impartial Third Party will be identified.
(3) The selection of an Impartial Third Party is subject
to the approval of the parties to the dispute. If the parties do not
suggest potential third parties, the Dispute Resolution Coordinator
will provide a list of potential third parties from which to choose.
If all parties agree to use an Impartial Third Party who charges for
ADR services, then the costs for the Impartial Third Party shall be
apportioned equally among all parties, unless otherwise agreed by
(g) Voluntary Agreement. All parties participating
must have the authority to reach an agreement to make a final recommendation
to resolve the dispute. The Executive Director will abide by an agreed
upon solution to the dispute and either approve that agreement or
offer that recommendation to the Board, if Board authorization is
needed. The decision to reach agreement is voluntary. If the parties
reach a resolution and execute a written agreement, the agreement
is enforceable in the same manner as any other written agreement of
the same nature with the State. A written agreement to which the Department
is a signatory resulting from an ADR procedure must be approved by
the appropriate authority.
(h) A written agreement to which the Department is
a signatory resulting from an ADR procedure is subject to Tex. Gov't
Code Chapter 552 concerning open records.
(i) Confidentiality of Records and Communications.
The confidentiality of the communications, records, conduct, and demeanor
of an impartial third party and parties in an ADR procedure are governed
by Tex. Gov't Code §2009.054.
(j) The Department may share the results of its ADR
process with other governmental bodies, and with the Center for Public
Policy Dispute Resolution at the University of Texas School of Law,
which may collect and analyze the information and report its conclusions
and useful information to governmental bodies and the legislature.