| (a) If any respondent to an executive director's preliminary
report (EDPR) or petition initiating an enforcement action fails to
timely file an answer as required by §70.105 of this title (relating
to Answer), the executive director may file a motion with the chief
clerk recommending that a default order be entered against the respondent.
The executive director may support the motion with such documentary
evidence, including affidavits, exhibits and pleadings, and oral testimony,
to demonstrate that the respondent received proper notice under §70.103
or §70.104 of this title (relating to Petitions Which Initiate
a Cause of Action and Notice of Executive Director's Preliminary Report)
of the pleading initiating the cause of action; and that the respondent
failed to timely file an answer under §70.105 of this title and
that the respondent is liable for the violations asserted in the cause
of action. The chief clerk will schedule the default order for consideration
at a commission meeting under Chapter 10 of this title (relating to
Commission Meetings). The executive director may also present documentary
evidence and oral testimony regarding the amount of penalties that
should be assessed against the respondent. In the motion for default
order, or at the hearing on the motion, the executive director may
also ask for additional penalties for violations alleged in the EDPR
or petition, which have continued from the time of the filing of the
EDPR or petition, up to the date of the default order. If the executive
director recommends additional penalties for continuing violations,
he shall briefly describe, either orally or in writing, the continuing
violations and the evidence, circumstantial or otherwise, that form
the basis for the allegation that the violations are in fact continuing.
The commission may grant the relief recommended in the EDPR or petition,
or such other amount as may be justified by the evidence presented
by the executive director.
(b) Even though some or all of the parties fail to
appear at a contested enforcement case hearing in person or through
their duly authorized representatives, the commission may consider
fully and dispose of the matter pending if notice has been given in
accordance with law.
(c) Upon issuance of a default order, notice of such
order shall be given to the respondent in accordance with Texas Government
Code, §2001.142.
(d) The effective date of a default order shall be
the date on which the order is signed by the commission or the executive
director.
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| Source Note: The provisions of this §70.106 adopted to be effective June 6, 1996, 21 TexReg 4753; amended to be effective July 7, 1999, 24 TexReg 5017; amended to be effective December 31, 2015, 40 TexReg 9677 |
