In addition to any other rules of evidence provided for in
the APA, Subchapter D, the following rules will apply to proceedings
before the department.
(1) General rules. The rules of evidence as applied
in nonjury civil cases in the district courts of this state shall
be followed. Irrelevant, immaterial, or unduly repetitious evidence
may be excluded. When necessary to ascertain facts not reasonably
susceptible to proof under those rules, evidence not admissible under
them may be admitted (except where precluded by statute) if it is
of a type commonly relied upon by reasonably prudent people in the
conduct of their affairs. The rules of privilege recognized by law
shall be effective in department proceedings. Objections to evidentiary
offers may be made and shall be noted in the record. No evidence shall
be admissible in a proceeding if it is beyond the scope of the notice
or amended pleadings of such proceeding.
(2) Representative documents. When a large number of
similar documents is offered, the administrative law judge may limit
those admitted to a number which are typical and representative, and
may require the abstracting of the relevant data from the documents
and the presentation of the abstracts in the form of an exhibit; however,
before making this requirement, the administrative law judge shall
see that all parties of record or their representatives are given
an opportunity to examine the documents from which the abstracts are
made.
(3) Prepared testimony. The prepared testimony of a
witness upon direct examination may be incorporated in the record
as if read or received as an exhibit, upon the witness' being sworn
and identifying same. Copies of the testimony shall be given to all
parties to the proceeding. The witness identifying the testimony shall
be subject to cross-examination, and the testimony shall be subject
to a motion to strike in whole or in part.
(4) Offer of proof. When testimony is excluded by ruling
of the administrative law judge, the party offering such testimony
shall be permitted to make an offer of proof by dictating it into
the record or submitting the substance of the proposed testimony in
writing, prior to the conclusion of the hearing, and such offer of
proof shall be sufficient to preserve the point. The administrative
law judge may ask such questions of the witness as he or she deems
necessary to satisfy himself or herself that the witness would testify
as represented in the offer of proof. An alleged error in sustaining
an objection to questions asked on cross-examination may be preserved
without making an offer of proof.
(5) Uncontested proceedings. In any uncontested proceeding,
the administrative law judge shall receive, without regard to the
rules of evidence, any evidence of a form and character which would
ordinarily be relied upon by prudent people in the conduct of their
affairs (unless precluded by statute), including, without limitation,
affidavits, documents, and other forms of hearsay testimony determined
by the administrative law judge to be relevant.
(6) Official notice. The administrative law judge may
take official notice of judicially cognizable facts and of generally
recognized facts within an area of the department's specialized knowledge
or expertise, and the special skills or knowledge of the department
and its staff may be utilized in evaluating the evidence. Parties
shall be notified of the material noticed, including any staff memoranda
or data, and shall be afforded an opportunity to contest the material
so noticed.
(7) Exclusion of witnesses.
(A) Upon request by any party, the administrative law
judge shall exclude witnesses other than parties from the hearing
room, except when testifying.
(B) The administrative law judge may order the witnesses,
parties, attorneys, and all other persons present in the hearing room
not to disclose to any witness excluded under this section the nature,
substance, or purpose of testimony, exhibits, or other evidence introduced
during the witness' absence.
(C) A party that is not a natural person may designate
an individual to remain in the hearings room, even though the individual
may be a witness.
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| Source Note: The provisions of this §1.20 adopted to be effective January 18, 1991, 16 TexReg 113; amended to be effective August 3, 1993, 18 TexReg 4747; amended to be effective August 23, 1996, 21 TexReg 7656; amended to be effective December 8, 2022, 47 TexReg 8039 |
