| (a) Substitution prior to arbitration hearing. The
comptroller shall remove an arbitrator from an arbitration and substitute
a different arbitrator prior to the arbitration hearing taking place
if the division director determines by clear and convincing evidence
there is good cause for such removal.
(b) Substitution prior to award. After an arbitration
hearing is held and prior to issuance of the award, an arbitrator
may be removed from an arbitration and a substitute arbitrator appointed
where a disaster or emergency, as defined by Government Code, §418.004
or §433.001, impacts the arbitrator's ability to complete the
arbitration in compliance with this subchapter. Substitution may also
take place if, as determined by the division director in the exercise
of the division director's discretion, the arbitrator experiences
a personal emergency, rendering them incapable of completing the arbitration
in compliance with this subchapter. The substitute arbitrator appointed
under this subsection shall comply with Subchapter K of this chapter
in facilitating and completing a new hearing.
(c) Good cause for substitution. Good cause for substitution
under subsection (a) of this section includes the following:
(1) the individual is not eligible or becomes ineligible
under the terms of §9.4260 or §9.4263 of this title, as
applicable;
(2) the individual violates one or more provisions
of this subchapter;
(3) there is a pending request for the arbitrator's
removal from the registry of arbitrators and the division director,
in the exercise of the division director's discretion, believes the
request could impact the arbitrator's ability to conduct a fair and
impartial arbitration hearing; or
(4) the division director determines, in the exercise
of the division director's discretion, that substitution is in the
interests of providing for a fair, impartial arbitration hearing.
(d) Clear and convincing evidence. For purposes of
this section, clear and convincing evidence means the measure or degree
of proof that produces a firm belief or conviction of the truth of
the allegations.
(e) Filing of substitution request. A party to an arbitration
may request the substitution of an arbitrator by filing a written
request with the division director. Requests must be received with
sufficient time to process and investigate the request prior to the
arbitration hearing if filed under subsection (a) of this section
or prior to the award being issued if filed under subsection (b) of
this section. If the arbitration hearing is held prior to resolution
of a request under subsection (a) of this section, or an award is
issued prior to resolution of a request under subsection (b) of this
section, the request will be dismissed. All requests must contain
the following:
(1) a letter, addressed to the division director and
signed by the requestor, that identifies the arbitration, arbitrator,
and the grounds for substitution under subsection (b) or (c) of this
section; and
(2) copies of all available communications exchanged
between the arbitrator and the parties, as applicable, that support
the request.
(f) Confidentiality. Information reviewed under this
section that is made confidential by law may not be disclosed except
as provided by law. That portion of the materials considered confidential
must be designated as such to protect it from disclosure.
(g) Dismissals. Requests for substitution shall be
dismissed if:
(1) the conduct complained of does not meet the requirements
of subsection (b) or (c) of this section; or
(2) the complaint is not timely or otherwise fails
to meet the requirements of subsection (e) of this section.
(h) Processing time. The comptroller shall examine
the request for substitution in a timely manner.
(i) Cure period. If good cause for substitution is
found, the arbitrator shall be notified by the comptroller and, where
applicable, given the chance to cure the violation by the deadline
established in the comptroller's notice. If the arbitrator does not
cure the violation by the deadline established in the comptroller's
notice, the arbitrator shall be removed and a new arbitrator substituted.
The comptroller shall keep a record of any removals under subsection
(a) of this section in the arbitrator's file.
(j) No appeal. The determination of a request for substitution,
including dismissal of the request, or the removal of an arbitrator
under this section is final and may not be appealed.
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