|(a) If a respondent declines to sign a proposed agreed
order or cease and desist order, or if the respondent fails to respond
timely to a proposed agreed order or cease and desist order, or if
the Board rejects a proposed agreed order, the board staff may proceed
with the filing of a contested case with the State Office of Administrative
Hearings (SOAH). At least ten (10) days prior to a scheduled hearing,
the notice of hearing shall be served on the licensee or applicant
for licensure as set out in subsection (g)(1) of this section. Except
in cases of temporary suspension, a notice of hearing shall be filed
only after notice of the facts or conduct alleged to warrant the intended
action has been sent to the respondent address of record and the respondent
has an opportunity to show compliance with the law for the retention
of a license as provided in §2001.054 of the APA, and §801.408
of the Veterinary Licensing Act.
(b) SOAH hearings of contested cases shall be conducted
in accordance with the Act, the APA, SOAH rules, and board rules.
In the event of a conflict, the Act shall prevail over any other statute
or rule, the APA shall prevail over SOAH rules, and SOAH rules shall
prevail over the rules of the Board, except when board rules provide
the Board's interpretation of the Act. If SOAH rules are silent on
an issue addressed by this subchapter, the provisions of this subchapter
shall be applied.
(c) The administrative law judge (ALJ) has the authority
under SOAH rules, Chapter 155, to issue orders, to regulate the conduct
of the proceeding, rule on motions, establish deadlines, clarify the
scope of the proceeding, schedule and conduct prehearing and posthearing
conferences for any purpose related to any matter in the case, set
out additional requirements for participation in the case, and take
any other steps conducive to a fair and efficient process in the contested
case, including referral of the case to a mediated settlement conference
or other appropriate alternative dispute resolution procedure as provided
by Chapter 2003 of the Government Code.
(d) All documents are to be filed at SOAH after it
acquires jurisdiction. Copies of all documents filed at SOAH shall
be contemporaneously filed with the Board.
(e) Because of the often voluminous nature of the records
properly received into evidence by the ALJ, the party introducing
such documentary evidence should paginate each exhibit and/or flag
pertinent pages in each exhibit in order to expedite the hearing and
the decision-making process.
(f) In accordance with the provisions of the APA, §2001.058(e),
a party may file an interlocutory or interim appeal to the Board requesting
that the Board vacate or modify an order issued by an ALJ.
(g) Notice of SOAH hearing; continuance and default.
(1) The Board shall provide notice of the time, date,
and place of the hearing to the respondent. The notice shall include
the requirements set forth in §2001.052 of the APA. The Board
shall send notice of a contested case hearing before SOAH to the respondent's
last known address as evidenced by the records of the Board. The respondent
is presumed to have received proper and timely notice three (3) days
after the notice is sent to the last known address as evidenced by
the records of the Board. Notice shall be given by first class mail,
certified or registered mail, or by personal service.
(2) If the respondent fails to timely enter an appearance
or answer the notice of hearing, the Board is entitled to a continuance
at the time of the hearing. If the respondent fails to appear at the
time of the hearing, the Board may move either for dismissal of the
case from the SOAH docket, or request that the ALJ issue a default
proposal for decision in favor of the Board.
(3) Proof that the respondent has evaded proper notice
of the hearing may also be grounds for the Board to request dismissal
of the case or issuance of a default proposal for decision in favor
of the Board.
(h) If a party submitted proposed findings of fact,
the proposal for decision shall include a ruling on each proposed
finding by the ALJ, including a statement as to why any proposed finding
was not included in the proposal for decision.
(i) After receiving the ALJ's findings of fact and
conclusions of law in the proposal for decision, the Board shall rule
on the merits of the charges and enter an order. The Board by order
may find that a violation has occurred and impose disciplinary action,
or find that no violation has occurred. The Board shall promptly advise
the complainant of the Board's action.
(j) If the respondent fails to appear for the contested
case hearing at the designated time and place, the ALJ may enter an
order dismissing the case on the basis of default and the Board may
informally dispose of the case.
|Source Note: The provisions of this §575.30 adopted to be effective July 13, 2008, 33 TexReg 5528; amended to be effective May 12, 2013, 38 TexReg 2763; amended to be effective December 23, 2014, 39 TexReg 10020; amended to be effective August 17, 2015, 40 TexReg 5155; amended to be effective September 24, 2018, 43 TexReg 6285