| (a) The board initiates a contested case hearing at
the State Office of Administrative Hearings by filing a complaint
with notice of not less than 10 days as specified in subsection (b)
of this section to the applicant, licensee, or registrant.
(1) The complaint shall contain the matters asserted
by the board, including the alleged conduct under which the enforcement
action is based, and a statement of legal authority to the statutes
or rules allegedly violated and those establishing jurisdiction.
(2) The following statement in capital letters in 12
point boldface type shall be contained in the complaint: FAILURE TO
RESPOND TO THE ALLEGATIONS IN WRITING WILL RESULT IN THE ALLEGATIONS
BEING ADMITTED AS TRUE AND AN ORDER BEING ENTERED BY THE BOARD BY
DEFAULT.
(b) The board may serve notice of the complaint initiating
a contested case hearing at the State Office of Administrative Hearings
by sending it to the party's current publicly available address of
record and the party's current confidential address of record if the
confidential address of record is different from the party's publicly
available address of record as shown by the board's records. The notice
shall be served by delivering a copy to the party either in person
or by certified or registered mail, return receipt requested.
(c) The applicant, licensee, or registrant shall file
a written answer with the State Office of Administrative Hearings
in response to the complaint with service to the board within 23 days
after the date of service of the complaint. The answer shall admit
or deny each of the allegations. If the party intends to deny only
a part of an allegation, the party shall specify so much of it is
true and shall deny only the remainder. The response shall also include
any other matter, whether of law or fact, upon which the licensee
or registrant intends to rely for his or her defense. If the party
fails to respond by filing a timely answer, the board’s attorney
files a motion to remand the case to the board for entry of a default
order, and the matter will be considered as a default case and the
party will be deemed to have:
(1) admitted all the factual allegations in the notice
specified in subsection (b) of this section;
(2) waived notice of a hearing;
(3) waived the opportunity for a hearing on the allegations;
and
(4) waived objection to the recommended sanctions made
at the informal conference.
(d) If the contested case is remanded to the board
by the State Office of Administrative Hearings as specified in subsection
(c) of this section, the board may enter a default order under §2001.056
of the Administrative Procedure Act.
(e) Any default judgment granted under this section
will be entered on the basis of the factual allegations in the notice
specified in subsection (b) of this section, and upon proof of proper
notice to the party's address of record.
(f) The party may file a motion for rehearing to set
aside the default order. The motion, which requests that the Board
vacate its default order under this section, shall be granted if the
motion presents convincing evidence that the failure to respond to
the notice specified in subsection (b) of this section was not intentional
or the result of conscious indifference, but due to accident or mistake,
provided that the party has a meritorious defense to the factual allegations
contained in the notice specified in subsection (b) of this section
and the granting thereof will not result in delay or injury to the
public or the Board.
|
| Source Note: The provisions of this §281.30 adopted to be effective March 25, 2007, 32 TexReg 1508; amended to be effective September 12, 2011, 36 TexReg 5845; amended to be effective September 9, 2012, 37 TexReg 6916 |
