(a) Actions subject to appeal. The following actions
are subject to appeal.
(1) An appeal may only be filed based on denial or
disqualification of an application for TxCDBG funding as a result
of procedural errors by Department staff. All other decisions regarding
contracts and grant administration are final.
(2) The failure of a grant administrator or consultant
to properly submit all required documentation to the Department is
not a basis for appeal.
(3) A request to waive program requirements is not
a basis for appeal.
(b) Procedures for requesting an appeal. The following
procedures shall apply when an applicant requests an appeal.
(1) Notice of denial or disqualification. The Department
shall send the applicant a written notice of denial or disqualification
of its application and the ground(s) on which the denial or disqualification
is based. The notice shall be provided by certified mail, return receipt
(or its equivalent), or sent electronically by email or facsimile.
The notice is considered to be received by the applicant when it is
delivered by certified mail, return receipt (or the equivalent private
delivery service), by facsimile, or by email. If the notice is undeliverable,
it is considered to be received by the applicant five days after being
sent to the addressee's last known mailing address, facsimile number,
or email address.
(2) Who may file. Only the chief (executive or elected)
official or designated representative of the applicant may submit
the request for appeal.
(3) Request for appeal. The request for appeal must
be submitted in writing and postmarked, or received by the Department
if submitted by email, on or before 5:00 p.m. Central Time not later
than fifteen (15) days after the receipt, or deemed receipt, of the
notice of denial or disqualification. The request for appeal must
clearly identify the action being appealed, include a statement of
facts or other pertinent information to support the appeal, and include
a copy of the notice of denial or disqualification.
(4) Acknowledgement of receipt. The Department shall
acknowledge the receipt of the request for appeal within ten (10)
days of its receipt of the request.
(c) Hearing Procedures. The administrative hearing
shall be conducted in accordance with the Administrative Procedure
Act, Government Code, Chapter 2001, and this section.
(1) Venue. All hearings shall be held in Austin, Texas,
unless for good cause and in the public interest another place of
hearing is designated by the administrative review official (ARO).
(2) Notice of hearing. Upon receipt of a timely request
for appeal, the Department shall set a hearing and send written notice
of the hearing to the appellant at least ten (10) days before the
date of the hearing. The hearing notice shall state:
(A) the date, time, and place where the hearing is
to be held; and
(B) that failure of appellant or appellant's representative
to appear at the hearing shall constitute a waiver of appellant's
right to appear personally before the ARO, unless the ARO reschedules
the hearing.
(3) Conduct of hearing.
(A) The ARO shall conduct the hearing as an informal
proceeding. The formal rules of court shall not apply unless necessary
for efficient conduct of the hearing.
(B) The hearing shall be recorded by a tape recorder
or teleconference equipment and kept on file for ninety (90) days
after the hearing. During this period, the appellant may copy or transcribe
this information at its own expense.
(4) Burden of proof. Appellant has the burden of proof
to show, by a preponderance of the evidence, that the Department's
denial or disqualification of appellant's application was based on
a procedural error made by Department staff.
(5) Documentary evidence. A party must file all documents
relating to the appeal with the docket clerk and must serve, at the
same time, a copy on the other party.
(d) Proposal for Decision. Within sixty (60) days after
the date of the hearing, the ARO shall issue a proposal for decision
based on information provided by the Department and the appellant,
and on program regulations. This timeframe is an administrative requirement
for the Department and may not be used as a basis for overturning
the Department's action if a decision is not made within the specified
timeframe.
(e) Final Decision.
(1) The Commissioner, or designee, shall review the
ARO's proposal for decision and issue a final decision on the appeal.
The final decision shall be issued within ninety (90) days after the
date of the hearing and shall be based on and limited to review of
the ARO's proposal for decision and information presented by the parties
in support of their positions.
(2) The Commissioner's decision of the appeal shall
be the final decision of the Department.
(f) Effect of State Agency Action.
(1) The Department's action shall remain in effect
during the appeal process.
(2) If the final decision on the appeal is in favor
of the appellant, the appellant is not guaranteed to receive grant
funding. The appellant's application will be scored and compared to
other applications scored during the application cycle. If the revised
score does not put the appellant in funding range when ranked against
other applications from the same scoring round, no award will be made.
(g) Computation of time. In computing any period of
time prescribed by this section, the day of the act, event, or default
after which the designated period of time begins to run is not to
be included. The last day of the period so computed is to be included,
unless it is a Saturday, Sunday or legal holiday, in which event the
period runs until the end of the next day which is not a Saturday,
Sunday or legal holiday.
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