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RULE §1.310Joint Memorandum of Understanding (MOU) Between the Texas Department of Agriculture (TDA) and the State Office of Administrative Hearings (SOAH) Concerning Procedures for Contested Cases Conducted by SOAH for TDA

(a) Statement of purpose. Texas Agriculture Code (the Code), §12.032, added by the 74th Legislature, provides that the Commissioner of Agriculture and the Chief Administrative Law Judge of SOAH by rule shall adopt a memorandum of understanding (MOU) under which SOAH conducts hearings for the department under the Code. This MOU is necessary to accomplish the efficient and expeditious hearing of matters under the jurisdiction of TDA by establishing the procedures to be used by each agency and clearly delineating each agency's responsibilities. Additionally, this MOU, when adopted by rule, shall inform the public of each agency's responsibilities and the procedures for the institution, conduct and determination of proceedings before SOAH on behalf of TDA.

(b) General statement of duties to be performed by SOAH.

  (1) SOAH shall conduct for TDA all administrative hearings in contested cases under the Code, with the exception that this MOU shall not apply to hearings held under the Code, Chapter 103. Except as otherwise provided by the Code or this MOU, all hearings will be held in accordance with the Administrative Procedure Act, Government Code, §§2001.001 et seq.

  (2) SOAH shall handle all matters related thereto, including prehearing and post-hearing matters, the issuance of the proposal for decision, and if required, shall appear before the commissioner or his designee to present the proposal for decision. Unless specifically requested by the department, the final decision or order shall be rendered by the commissioner or his designee. At the request of TDA, SOAH shall include a proposed order with the proposal for decision, but shall not be responsible for the preparation of a final order which differs from the proposed order submitted by SOAH.

  (3) During the term of this MOU, SOAH shall act pursuant to Texas Government Code, §§2003.001 et seq, Texas Government Code, §§2001.001 et seq, and other applicable law.

(c) Definitions. The following meanings apply to this section unless expressly stated otherwise.

  (1) ALJ--An administrative law judge assigned by the State Office of Administrative Hearings.

  (2) Code--Texas Agriculture Code.

  (3) Commissioner--Commissioner of agriculture or his designee.

  (4) Contested case--A proceeding, including but not restricted to licensing, in which the legal rights, duties, or privileges of a party are to be determined by an agency after an opportunity for administrative hearing as defined in the Government Code, §2001.003.

  (5) MOU--The Memorandum of Understanding executed by TDA and SOAH for the conducting of hearings on contested cases.

  (6) SOAH--The State Office of Administrative Hearings.

  (7) TDA--The Texas Department of Agriculture.

(d) Referral of a contested case to SOAH.

  (1) Referral of a contested case to SOAH may be made only by TDA. The referral is initiated by filing with SOAH either a request for setting of hearing form or a request for assignment of ALJ form as provided in subparagraphs (A) and (B) of this paragraph.

    (A) The request for setting of hearing form shall be filed when TDA seeks to have the case set for hearing and no prehearing matters requiring resolution by an ALJ are anticipated. If prehearing matters arise after the request for setting of hearing form is filed, SOAH shall assign an ALJ to resolve the matter.

    (B) The request for assignment of ALJ form shall be filed when TDA anticipates the need for one or more prehearing conferences and/or the need for an ALJ's ruling on various matters prior to commencement of the hearing. If no request for setting of a hearing is included in the request for assignment of an ALJ, the date for the hearing shall be determined by the assigned ALJ.

  (2) At the time the referral is initiated, TDA shall also provide to SOAH:

    (A) all pleadings in the case, including, but not limited to, complaints, petitions, applications, motions, or such other documents describing agency action related to the contested case;

    (B) an accurate service list; and

    (C) notification of any statutory deadlines applicable to the contested case.

  (3) Following receipt of the request for assignment of ALJ form, SOAH shall assign the case a docket number, assign an ALJ, and notify all parties in writing of the ALJ assigned to the case. If TDA also requests a hearing date, the SOAH shall provide a date and a confirmation of the setting to TDA. Hearings shall be held at a location agreed upon by SOAH and TDA. Following receipt of the confirmation of the setting of the hearing, TDA shall send its notice of hearing.

  (4) In any case in which an expedited hearing is required by statute, TDA should file a request for setting of hearing within 24 hours of receipt of a request by any party. In such cases, SOAH should confirm with TDA a hearing date and docket number within 24 hours of such request.

(e) Notice of hearing.

  (1) Upon receipt of the docket number and setting date from SOAH, TDA shall issue the initial notice of hearing as required by the Code and the Government Code, and will serve the notice of hearing by certified mail, return receipt requested, to all parties to the docketed matter.

  (2) Notice is governed by the Government Code, §2001.051 and §2001.052, unless alternative procedures are permitted by law. The notice shall include the time, place, and nature of the hearing; a statement of the legal authority and jurisdiction under which the hearing is to be held; a reference to the particular sections of the statutes and any corresponding regulations to which the hearing relates; a short, plain, statement of the matters asserted; the docket number; and a certificate of service.

(f) Filing requirements. Filing of documents shall be in accordance with the following.

  (1) Any party filing notices of hearing, staff memoranda, and pleadings (including discovery), motions, and such other filings, except motions for rehearing shall file the original with SOAH and a true and correct copy with the TDA docket clerk. Such documents shall be delivered to TDA and SOAH by the same method and on the same date.

  (2) All motions, except motions for rehearing, shall be addressed to SOAH.

  (3) All motions for rehearing shall be addressed to the commissioner and shall be filed with the TDA docket clerk, with a copy provided to SOAH.

(g) Hearings.

  (1) Hearings, including prehearing proceedings on contested cases, shall be conducted in accordance with the Government Code, Chapter 2001, the Agriculture Code, the TDA rules of procedure, the SOAH rules of procedure, and any other applicable law and accompanying regulations.

  (2) In the event of any conflict between the SOAH rules of procedure and the TDA rules of procedure, the TDA rules of procedure control, unless otherwise specifically stated in the SOAH rules of procedure (see 1 TAC §155.5), or other controlling law; or the judge so orders, when necessary to ensure the fair and efficient handling of a case.

  (3) The ALJ shall establish reasonable deadlines and procedures for the filing of affidavits, the designation of witnesses, and such other matters as are necessary or appropriate.

  (4) If the commissioner informally disposes of a contested case by stipulation, agreed settlement, consent order, agreed order, or default as provided in the Code, the Government Code, §2001.056, and TDA rules, the TDA docket clerk shall file a request to withdraw the case from the SOAH docket and include a copy of the order. SOAH shall then issue an order withdrawing the case from the SOAH docket.

  (5) Hearings shall be recorded in the manner agreed to by SOAH and TDA.

(h) Final orders.

  (1) The ALJ shall prepare and issue the proposal for decision and a proposed order. The proposal for decision shall include proposed findings of fact and conclusions of law. The commissioner may not attempt to influence the ALJ's findings of fact, conclusions of law, or the ALJ's application of the law to the facts in any proceedings. Unless otherwise provided by statute, the ALJ shall issue a proposal for decision and proposed order no later than the 60th day after the date the record is finally closed, unless the ALJ specifies at the conclusion of the hearing a longer period of time in which the proposal for decision and proposed order may be issued.

  (2) The ALJ shall submit the proposal for decision and the proposed order to the commissioner and shall serve true and correct copies of the proposal for decision and the proposed order by registered mail upon the parties.

  (3) The ALJ may amend the proposal for decision and proposed order pursuant to exceptions, briefs, and reply briefs without the proposal for decision and proposed order again being served on the parties. The ALJ shall promptly provide a copy of any amended proposal for decision and proposed orders to the commissioner and all parties. Upon request of the commissioner, the ALJ shall also provide an electronic copy of the proposed order to the commissioner.

  (4) The commissioner may consider the proposal for decision and proposed order prepared by the ALJ, the exceptions, briefs, reply briefs, and the arguments of the parties entirely upon written submission.

  (5) For actions brought under the Code, §12.020, the commissioner may change a finding of fact or conclusion of law made by the ALJ if the commissioner:

    (A) determines that the ALJ:

      (i) did not properly apply or interpret applicable law, department rules or policies, or prior administrative decisions; or

      (ii) issued a finding of fact that is not supported by a preponderance of the evidence; or

    (B) determines that a department policy or a prior administrative decision on which the ALJ relied is incorrect or should be changed.

  (6) The commissioner shall state in writing the specific reason and legal basis for a determination under paragraph (5) of this subsection.

  (7) If the commissioner seeks clarification or additional information relating to the proposed order, the commissioner may send written questions, including a request to reopen the hearing if necessary to the ALJ with copies to all parties of record. If the information necessary to respond to the commissioner's questions is not already in evidence, the commissioner may remand the case to the ALJ for further hearing and the ALJ shall notify all parties of record of the remand.

  (8) Upon the issuance of any order that may become final under the Government Code, §2001.142, TDA's docket clerk shall send a copy of the order by first class mail, pursuant to the Government Code, §2001.142, to the parties or their representatives, and to SOAH. TDA's docket clerk shall keep an appropriate record of the mailing.

(i) Motions for rehearing. The commissioner may state in a written order the decision as to a motion for rehearing, or may take no action and allow the motion for rehearing to be overruled by operation of law. When a motion for rehearing is granted and if the commissioner remands for further proceedings, the ALJ, upon notice to all parties of record, shall convene the rehearing under the same docket as the original hearing.

(j) Custody of the hearing record.

  (1) SOAH shall maintain the official record in a contested case from the time TDA refers the case to SOAH until:

    (A) the entry of an order by an ALJ to withdraw or dismiss a case from the SOAH docket either by the granting of a party's motion or on the ALJ's own motion; or

    (B) the ALJ's proposal for decision has been issued in the case, time for filing of exceptions and replies to the proposal has passed, and the ALJ has made any amendments to the proposal based on those exceptions or replies.

  (2) TDA shall also maintain a copy of the record at all times.

  (3) Prior to the conclusion of the administrative hearing process, any request for a copy or transcript of the record may be directed either to SOAH or TDA. Requests for official copies shall be directed to SOAH as the official custodian authorized to certify at to the completeness of the record before the conclusion of the administrative hearing process.

  (4) After the issuance of a proposal for decision and passage of appropriate timelines as stated in paragraph (1) of this subsection, the duty of official custodian of the record shall be transferred to TDA. Within ten days of the passage of appropriate timelines for filing of exceptions and replies to exceptions, SOAH shall deliver the official record to TDA along with a certified statement that the documents delivered constitute the complete record in the case. Any request for a copy or transcript of the record shall then be directed to TDA. TDA shall have the authority to certify as to the completeness of the record.

Source Note: The provisions of this §1.310 adopted to be effective March 12, 1996, 21 TexReg 1657.

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