|(a) For purposes of this section, default means the
failure of the respondent to appear in person or by legal representative
on the day and at the time set for hearing in a contested case or
the failure to appear by telephone in accordance with the notice of
(b) Remedies available upon default. The Administrative
Law Judge (ALJ) may proceed in the party's absence and such failure
to appear entitles the commission to seek informal disposition as
provided by the APA. The ALJ may grant any motion by the commission
to remove the case from the contested hearing docket and allow for
informal disposition by the commissioner.
(c) The board may enter a default judgment by issuing
an order against the defaulting party in which the factual allegations
in the notice of hearing are deemed admitted as true without the requirement
of submitting additional proof, if it is established that proper notice
was provided to the defaulting party opponent. For purposes of this
section, proper notice means notice sufficient to meet the provisions
of the Texas Government Code, Chapter 2001, and the State Office of
Administrative Hearings Rules of Procedure.
(d) Motion to set aside and reopen. A timely motion
by the respondent to set aside the default order and reopen the record
may be granted if the respondent establishes that the failure to attend
the hearing was neither intentional nor the result of conscious indifference,
and that such failure was due to mistake, accident, or circumstances
beyond the respondent's control.
(1) A motion to set aside the default order and reopen
the record must be filed with the board prior to the time that the
order of the board becomes final pursuant to the provisions of the
Texas Government Code.
(2) A motion to set aside the default order and reopen
the record is not a motion for rehearing and is not to be considered
a substitute for a motion for rehearing. The filing of a motion to
set aside the default order and reopen has no effect on either the
statutory time periods for the filing of a motion for rehearing or
on the time period for ruling on a motion for rehearing, as provided
in the Texas Government Code.
(e) This subsection also applies to cases where service
of the notice of hearing on a defaulting party is shown only by proof
that the notice was sent to the party's last known address as shown
on the commission's records, with no showing of actual receipt by
the defaulting party or the defaulting party's agent. In that situation,
the default procedures described in subsection (c) of this section
may be used if there is credible evidence that the notice of hearing
was sent by certified or registered mail, return receipt requested,
to the defaulting party's last known address.
|Source Note: The provisions of this §681.182 adopted to be effective September 1, 2005, 30 TexReg 4978; amended to be effective April 27, 2008, 33 TexReg 3268; amended to be effective December 12, 2013, 38 TexReg 8889; amended to be effective February 28, 2019, 44 TexReg 844