|(a) Right to Contest Adverse Proposals.
(1) If TDCJ-CJAD (hereinafter referred to as the division)
proposes to deny, revoke, or suspend the certification of a CSO or to reprimand
such officer shall be entitled to notice and a hearing before the division
or a hearings examiner appointed by the division. Hearings before a hearings
examiner shall be conducted pursuant to the procedures set forth in subsection
(h) of this section.
(2) If the division proposes the reduction, refusal, or suspension
of payment of state aid, not including the refusal to provide or a reduction
of discretionary grant funding other than funds suspended or reduced during
a funding cycle, or intends to impose budget control over a CSCD (hereinafter
referred to as the department), the department shall be provided with a notice
and offered a hearing.
(b) Notice of Proposed Action.
(1) The division shall issue a written notice that:
(A) defines specifically the alleged conduct that constitutes
substantial noncompliance with division standards or requirements;
(B) indicates the proposed action to be taken in the matter;
(C) provides a succinct statement of the reasons for the proposed
(D) makes reference to the particular sections of the statutes,
standards, and rules involved; and,
(E) informs the supervision officer or department of the right
to request a hearing.
(2) The notice must be signed by the TDCJ-CJAD director and
sent by registered or certified mail, return receipt requested and postage
prepaid. If the proposed action is against a CSO, then the notice must be
sent to the individual with a copy forwarded to the director of the department.
(c) Request for Further Hearing Before the Judicial Advisory
Council. A department or CSO who received written notice of the division's
proposed adverse action may after the conclusion and results of the hearing
before the Division or Hearings Examiner provided under subsection (a) of
this section, request a further hearing to contest the matter before the Judicial
Advisory Council (JAC).
(1) Within 15 working days (for purposes of this section, the
term days refers to business days other than weekends or holidays) of the
receipt of the written notice of the results of the hearing before the Division
or Hearings Examiner, the respondent CSO or department must submit in writing
a request for a further hearing before the JAC to the division director and
the chairperson of the JAC.
(2) The request for further hearing before the JAC must include
a succinct statement of the grounds upon which the proposed action is contested
and all grounds upon which the effected individual or department refutes the
basis of the proposed action and any results from the initial hearing before
the Division or Hearings Examiner.
(3) The JAC shall offer the affected CSO or department an opportunity
to be heard at the next regularly scheduled meeting of the JAC held immediately
after receipt of the request for hearing. If no meeting is scheduled within
60 days of the receipt of the request for further hearing before the JAC,
then the chairperson shall schedule a specially-called meeting to be held
no later than 60 days from the receipt of the applicable request for further
hearing before the JAC.
(4) The chairperson shall cause a written notice to be issued
to the affected CSO or department informing the party of:
(A) the time, date, and location of the hearing;
(B) the legal authority and jurisdiction under which the hearing
is to be held; and
(C) the manner in which the hearing will be conducted. Notice
shall be sent by registered or certified mail, return receipt requested, not
less than 10 days prior to the hearing.
(d) The Division and the Affected Party Shall Each Be Given
Thirty Minutes to Present Their Respective Sides. Testimony may be given orally
under oath or through a prepared written statement or affidavit as acknowledged
before a notary public. No more than three witnesses per side shall testify.
However, upon the request of either party made prior to the hearing and at
the discretion of the chairperson, the time for making a presentation and
the number of witnesses needed to testify may be increased.
(e) At the Conclusion of the Hearing Before the JAC, the Members
of the JAC Shall Vote Whether to Recommend that the Division's Proposed Adverse
Action be Withdrawn, Modified, or Affirmed. Within 10 days of the recommended
vote of the JAC, the TDCJ-CJAD director shall notify the officer, department
director, and/or administrative judge concerning whether or not the director
concurs with the recommendation of the JAC. Notice shall be made in writing
and sent by registered or certified mail, return receipt requested in accordance
with subsection (b)(2) of this section.
(f) Failure to Request a Hearing Before the JAC Waives any
Further Appeal to the Texas Board of Criminal Justice.
(g) Request for Hearing Before the Texas Board of Criminal
Justice. Except as provided in subsection (f) of this section and paragraph
(2) of this subsection a department or supervision officer may contest a final
proposed action of the division director before the Texas Board of Criminal
(1) Within 15 days of the receipt of the written notice of
the final proposed action of the division director, the affected officer or
department must submit in writing to the Chairperson of the Texas Board of
Criminal Justice with a copy forwarded to the division director a request
for hearing before the Board.
(2) Failure to submit the request for hearing within the specified
time period waives any future appeal before the Board.
(3) Within 20 days of receipt of the request for hearing, the
general counsel of the Texas Department of Criminal Justice or his designee
shall file with the State Office of Administrative Hearings a request for
assignment of administrative law judge. Said request shall be accompanied
with a complaint containing the same information as required under subsectin
(b)(1)(A) - (E) of this section and also including a statement of the recommendation
of the JAC and the division director's final proposed action. Said request
shall also be accompanied with a written statement of applicable rules or
policies of the division and agency. The complaint shall designate the parties
in this contested matter. The affected officer or department who is appealing
the proposed adverse action of the TDCJ-CJAD director shall be designated
as the petitioner. The division shall be designated as the respondent. Said
request and complaint shall be sent to the officer, department director and/or
administrative judge by registered or certified mail, return receipt requested
and postage prepaid.
(4) Division Representative. The general counsel of the Texas
Department of Criminal Justice or his/her designee shall represent the division.
The general counsel has authority over the manner and substance of the presentation
of the division's case.
(5) Representation for Petitioner. Any petitioner may appear
and be represented by an attorney at law authorized to practice law in the
State of Texas. The petitioner may appear on his own behalf or appearance
may be made by his duly authorized representative.
(6) Within 20 days of the receipt of the complaint the petitioner
shall cause a response to be served on the division. The response shall specify
which particulars of the complaint that the petitioner contests. In addition,
the petitioner shall include any other defense and/or supporting factual statement
in his response which was not previously raised by written pleading in the
prior hearing. Said response shall be sent by certified mail, return receipt
requested to the general counsel or his designee and to the clerk of the administrative
law judge in accordance with subsection (h)(8)(A) of this section.
(h) Administrative Hearing Procedures.
(1) Notice of Hearing. The petitioner and other parties shall
be given no less than 10 days notice of any scheduled hearing. Notice shall
be sent by registered or certified mail, return receipt requested.
(2) Motions for Consideration.
(A) All motions for consideration must be filed with the clerk
of the administrative law judge no fewer than five days prior to the date
in which the matter is scheduled to be heard.
(B) Any motion relating to a pending proceeding, unless made
during a hearing, must be in writing and must specify the desired relief,
the reason, and basis for this relief. If based upon matters which do not
appear on record, it must be supported by affidavit.
(C) If any party has appeared in the proceeding by attorney
or other representative authorized to make an appearance, the attorney or
other representative must be served. The willful failure of any party to make
such service will be sufficient grounds for the administrative law judge to
enter an order striking the pleading from the record.
(3) Prehearing Conference. On the motion of the petitioner
or the respondent or on his/her own motion, the administrative law judge may
direct the parties and their attorneys or representative to appear before
him at a specified time and place for a conference before the hearing for
the purpose of formulating issues and considering:
(A) the possibility of making admissions of certain averments
of facts or stipulations to avoid the unnecessary introduction of proof;
(B) the simplification of issues;
(C) the procedure at the hearing;
(D) the specification of the number of witnesses;
(E) matters to be officially noted;
(F) the mutual exchange of prepared testimony and exhibits;
(G) the date discovery is to be closed; and
(H) such other matters as may aid in the simplification of
the proceedings and the disposition of the matters in controversy.
(4) Discovery and Depositions.
(A) Discovery shall be provided and governed by Texas Government
Code, Chapter 2001, Subchapter D, (the Administrative Procedure Act), and
where no conflict exists with said Act, with the Texas Rules of Civil Procedure.
(B) Depositions shall be taken in accordance with the requirements
of Texas Government Code, Chapter 2001, Subchapter D, (the administrative
Procedure Act), and where no conflict exists with said Act, with the Texas
rules of Civil Procedure.
(C) On its own motion or on the written request of a party,
and on deposit of an amount that will reasonably ensure payment of the amount
estimated to accrue under Texas Government Code, §2001.103, the Texas
Department of Criminal Justice shall issue a commission, addressed to the
officers authorized by statute to take a deposition, requiring that the deposition
of a witness be taken. The commission shall also authorize the issuance of
any subpoena necessary to require that the witness appear and produce, at
the time the deposition is taken, books, records, papers, or other objects
that may be necessary and proper for the purpose of the hearing.
(5) Rules of Evidence.
(A) In hearings under these rules, irrelevant, immaterial,
or unduly repetitious evidence shall be excluded. The rules of evidence as
applied in non-jury civil cases in the district courts of the state shall
be followed. However, evidence may be admitted if it is necessary to ascertain
facts not reasonably susceptible of proof under the rules of evidence applicable
to non-jury civil cases in district court, is not precluded by statute, and
is of a type on which a reasonably prudent person commonly relies in the conduct
of the person's affairs. Objections to evidentiary offers may be made and
shall be noted in the record.
(B) Documentary evidence may be received by the administrative
law judge in the form of a copy or excerpt if the original is not readily
available. On request, either party shall be given an opportunity to compare
the copy with the original.
(C) If a hearing will be expedited and the interests of the
parties will not be prejudiced substantially, any part of the evidence may
be received in written form or the parties may stipulate as to facts or circumstances
or summarize same.
(D) Either party may conduct cross-examination as required
for a full and true disclosure of the facts.
(E) On its own motion or on the written request of a party,
the Texas Department of Criminal Justice shall issue a subpoena addressed
to the sheriff or to a constable to require the attendance of a witness or
the production of books, records, papers, or other objects that may be necessary
and proper for the purposes of a proceeding if:
(i) good cause is shown; and
(ii) an amount is deposited that will reasonably ensure payment
of the amounts estimated to accrue under Texas Government Code, §2001.103.
(F) Official notice may be taken by the administrative law
judge of all facts judicially cognizable and generally recognized facts within
the area of the agency's specialized knowledge. Parties shall be notified
either before or during the hearing, or by reference in preliminary reports
or otherwise, of the material officially noticed, including any staff memoranda
or data, and afforded an opportunity to contest the material so noticed.