| (a) The administrative law judge shall issue a proposal
for decision with proposed conclusions of law and findings of fact
in accordance with Government Code, Chapter 2001 and other applicable
law.
(b) Exceptions to the proposal for decision shall be
filed with TRS, directed to the attention of the executive director,
within 15 days of the date the proposal for decision was issued. Replies
to any exception shall be filed with TRS within 15 days of the date
the exception is filed. Exceptions shall state with specificity any
error of fact or law alleged to have been made by the administrative
law judge, and specific references shall be given to exhibit numbers
and pages and to testimony where supporting evidence is found. References
to testimony shall include the witness name and transcript page and
line, if a transcript was prepared; if no transcript was prepared,
testimony shall be identified at least by witness name, as well as
any other means that may assist in verifying assertions regarding
the testimony.
(c) The executive director shall render a decision
in the proceeding, except that in a proceeding relating to eligibility
for disability retirement, the board of trustees shall render a decision
following issuance of a proposal for decision. The executive director
or the board of trustees may accept or modify the proposed conclusions
of law or proposed findings of fact or may vacate or modify an order
issued by an administrative law judge in the manner set forth in subsection
(f) of this section. If changes are made, the decision shall state
in writing the specific reason and legal basis for each change. A
copy of the decision shall be served on the parties.
(d) Any party adversely affected by a decision of the
executive director in a docketed appeal may appeal the decision to
the board of trustees, unless by statute or other rule the decision
of the executive director is the final decision of TRS. Written notice
of appeal must be filed with the executive director by the later of:
(1) 20 days after the decision of the executive director
is mailed; or
(2) the number of days after the date the decision
of the executive director is mailed equal to the number of days it
took the executive director to render the decision in the proceeding.
(e) If notice of appeal is timely filed, the decision
of the executive director shall serve as a proposal for decision to
the board.
(f) The number of days it took the executive director
to render the decision in a proceeding is calculated from:
(1) if exceptions to a proposal for decision are not
filed, the date of the deadline to file exceptions to a proposal for
decision in the proceeding under subsection (b) of this section to
the date the decision of the executive director is mailed; or,
(2) if exceptions to a proposal for decision are filed,
the date the administrative law judge takes action on the filed exceptions
to the date the decision of the executive director is mailed.
(g) If a decision of the executive director is appealed,
the parties may file additional exceptions or briefs and replies if
the executive director modified the administrative law judge's proposed
findings of fact or conclusions of law. Additional exceptions or briefs
must be filed and served at the same time as the notice of appeal.
Replies shall be filed and served within 15 days of the filing of
the notice of appeal and exceptions or briefs. The executive director
may modify the filing deadlines.
(h) The final decision in an appeal shall be based
upon the existing record in the case. In its sole discretion, the
board of trustees or the executive director, as applicable, may take
the following actions:
(1) modify, refuse to accept, or delete any proposed
finding of fact or conclusion of law made by the administrative law
judge;
(2) make alternative findings of fact and conclusions
of law;
(3) vacate or modify an order issued by the administrative
law judge; and
(4) make a final decision on a contested case.
(i) In exercising its discretion, the board of trustees
or the executive director, as applicable, may consider but is not
limited to the following grounds for changing a finding of fact or
conclusion of law or for making a final decision in a contested case
that is contrary to the recommendation of the administrative law judge:
(1) the administrative law judge did not properly apply
or interpret applicable law, retirement system rules, written policies
provided to the administrative law judge, or prior administrative
decisions;
(2) a prior administrative decision on which the administrative
law judge relied is incorrect or should be changed;
(3) a technical error in a finding of fact should be
changed;
(4) a finding or conclusion or other action of the
administrative law judge would alter the terms of the plan; or
(5) the change is pursuant to a fiduciary responsibility.
(j) An administrative decision of TRS staff, a decision
by the Medical Board, or a decision by the executive director is the
final decision of TRS unless a party exhausts any right to appeal
a matter to the board of trustees.
(k) An appeal to the Board of Trustees shall be considered
in open meeting to the extent required by law. A party who appeals
to the Board of Trustees consents to the public discussion of all
relevant facts, including information in the member's file that may
otherwise be confidential by law. The board in its sole discretion
may determine whether to hear oral argument on an appeal. In making
that determination, the board may consider if confidential information
of a TRS participant who is not a party to the appeal may be disclosed
during oral argument.
|
| Source Note: The provisions of this §43.45 adopted to be effective April 20, 1988, 13 TexReg 1672; amended to be effective January 24, 1992, 17 TexReg 256; amended to be effective June 9, 1999, 24 TexReg 4249; amended to be effective March 12, 2003, 28 TexReg 2115; amended to be effective March 8, 2007, 32 TexReg 1095; amended to be effective April 1, 2011, 36 TexReg 2002; amended to be effective October 17, 2021, 46 TexReg 6945 |
