| (a) A notice of violation (NOV) is a notice issued
to a system participant when the division finds that the system participant
has committed an administrative violation and the division seeks to
impose a sanction under the Act or division rules. An NOV is not required
to be issued before or after the issuance of an ex parte emergency
cease and desist order.
(b) An NOV shall be in writing and include:
(1) the provision(s) of the Act, rule, order, or decision
of the commissioner that the system participant violated;
(2) a summary of the facts that establish that the
violation(s) occurred;
(3) a description of the proposed sanction that the
division intends to impose;
(4) a statement of the basis for the proposed sanction
including:
(A) a description of the underlying facts considered
by the division for each of the factors listed in Labor Code §415.021(c)
and (c-2), if applicable, (relating to Assessment of Administrative
Penalties) and §180.26 of this title (relating to Criteria for
Proposing, Recommending and Determining Sanctions; Other Remedies)
in determining the appropriateness of the division's proposed sanction;
(B) a description of which factors under Labor Code §415.021(c)
and (c-2), if applicable, and §180.26 of this title had a mitigating
or aggravating effect on the division's proposed sanctions; and
(C) a description of the division's proposed sanction
for each violation or violation type in the case of repeated administrative
violations. This requirement does not prohibit the division from considering
the aggregate impact of all administrative violations described in
the NOV when proposing a sanction if justice requires such consideration;
(5) the right to consent to the charge and the proposed
sanction(s);
(6) the right to request a hearing; and
(7) other information about the rights, obligations,
and procedures for requesting a hearing.
(c) The charged party shall file a written answer to
the NOV not later than the twentieth day after the notice is received.
The answer shall either consent to the proposed sanction, and remit
the amount of the penalty, if any, or request a hearing by being filed
with the division's chief clerk of proceedings. If the charged party
fails to respond to the NOV within 20 days of receipt of the notice,
the division shall schedule a hearing at the State Office of Administrative
Hearings (SOAH) and provide notice of hearing to the charged party
that meets the requirements of §148.5 of this title (relating
to Notice of Hearing) and must include the information in subsection
(b)(3) and (4) of this section.
(d) A charged party that receives a notice of hearing
under subsection (c) of this section shall, within 20 days of the
date on which the notice of hearing is provided to the party, file
a written answer or other responsive pleading. Such response shall
be filed in accordance with 1 TAC §155.101 of this title (relating
to Filing Documents) and §155.103 of this title (relating to
Service of Documents on Parties).
(e) For purposes of this section, events described
in paragraphs (1) or (2) of this subsection constitute a default on
the part of a charged party who receives a notice of hearing under
subsection (c) of this section:
(1) failure of the charged party to file a written
response as provided by subsection (d) of this section; or
(2) failure of the charged party to appear in person
or by legal representative on the day and at the time set for hearing
in a contested case at SOAH, regardless of whether a written response
has been filed.
(f) In the event that a charged party defaults as described
by subsection (e) of this section, the division may seek informal
disposition by default by the commissioner as permitted by Government
Code §2001.056.
(g) For purposes of this subchapter, "disposition by
default" shall mean the issuance of an order against the charged party
in which the allegations against the party in the notice of hearing
are deemed admitted as true, upon the offer of proof to the commissioner
that proper notice was provided to the defaulting party. For purposes
of this section, proper notice means notice sufficient to meet the
provisions of the Government Code §2001.051 and §2001.052
and §148.5 of this title (relating to Notice of Hearing).
(h) After informal disposition of a contested case
by default, a charged party may file a written motion to set aside
the default order and reopen the record. A motion by the charged party
to set aside the default order and reopen the record shall be granted
by the commissioner if the charged party establishes that the failure
to file a written response or to attend the hearing was neither intentional
nor the result of conscious indifference, and that such failure was
due to a mistake or accident. A motion to set aside the default order
and reopen the record shall be filed by the charged party with the
division's chief clerk of proceedings prior to the time that the order
of the commissioner becomes final pursuant to the applicable provisions
of Government Code, Chapter 2001, Subchapter F.
(i) 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. A motion for rehearing is
required in order to exhaust administrative remedies. The filing of
a motion to set aside the default order and reopen the record 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 applicable provisions of the Government
Code, Chapter 2001, Subchapter F.
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| Source Note: The provisions of this §180.8 adopted to be effective July 29, 1991, 16 TexReg 3941; amended to be effective December 4, 1995, 20 TexReg 9717; amended to be effective September 14, 2003, 28 TexReg 7711; amended to be effective January 9, 2011, 35 TexReg 11873; amended to be effective February 14, 2012, 37 TexReg 691; amended to be effective January 16, 2019, 44 TexReg 264; amended to be effective January 12, 2020, 45 TexReg 359 |
