(a) Default. If the party who does not have the burden
of proof fails to appear at a contested case hearing at the State
Office of Administrative Hearings (SOAH), the administrative law judge
must issue a default proposal for decision that can be adopted by
the Board.
(b) Failure to issue default proposal for decision.
If the administrative law judge grants a default but does not issue
a default proposal for decision and instead issues a default order
dismissing the case and returning the file to the Plumbing Board for
informal disposition on a default basis in accordance with §2001.056
of the Texas Government Code, the Board may issue a final order deeming
the allegations in the complaint as true and imposing the sanctions
requested in the complaint.
(c) Failure to prosecute: If an applicant for licensure
fails to appear at a contested case hearing at the SOAH, the administrative
law judge must dismiss the case for want of prosecution, any relevant
application will be withdrawn, and the Board may not consider a subsequent
application from the party until the first anniversary of the date
of dismissal of the case at SOAH. If the administrative law judge
dismisses the case and returns the file to the board for informal
disposition on a default basis in accordance with §2001.056 of
the Texas Government Code, the Board will issue a final order referring
to this rule and advising the applicant that his or her application
was withdrawn and that he or she may reapply for licensure one year
after the date of the dismissal of the case at the SOAH.
(d) Applicants for licensure bear the burden to prove
fitness for licensure.
(e) Contesting a final order issued following a default
or dismissal for failure to prosecute. In the event that the respondent
wishes to contest a final order issued following a default or dismissal
for failure to prosecute, the respondent must timely file a motion
for rehearing as provided by Chapter 2001 of the Texas Government
Code and this motion must show the following:
(1) the failure to timely file a written answer or
appear at the SOAH hearing was caused by fraud, accident, or wrongful
act or mistake of the Board;
(2) the failure to timely file a written answer or
appear at the SOAH hearing was not the result of respondent's fault
or negligence nor of respondent's representative if any;
(3) the respondent has a meritorious defense; and
(4) the motion for rehearing must be supported by affidavits
and documentary evidence of the above and show a prima facie case
for a meritorious defense.
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