| (a) Rules of evidence. (1) Irrelevant, immaterial, or unduly repetitious evidence is excluded. The rules of evidence, as applied in nonjury civil cases in the district courts of the state, must be followed. When necessary to determine facts not reasonably susceptible of proof under those rules, evidence not admissible under those rules may be admitted. This is true except when precluded by statute, if it is of a type commonly relied upon by reasonably prudent individuals in the conduct of their affairs. The rules of privilege recognized by law are in effect. Objections to evidentiary offers may be made and must be noted in the record. Subject to these requirements, any part of the evidence may be received in written form if a hearing is to be expedited and if the parties' interest will not be substantially prejudiced. The prepared testimony of a witness upon direct examination, either in narrative or question and answer form, may be incorporated
in the record as if read or received as an exhibit after the witness has been sworn and has identified that the prepared testimony is as true and accurate as his oral testimony would be. The witness is subject to clarifying questions and to cross-examination. The prepared testimony is subject to a motion to strike either in whole or in part. (2) Documentary evidence may be received in the form of copies or excerpts if the original is not readily available. On request, parties can compare the copy with the original. (3) Official notice may be taken of all facts judicially known. In addition, notice may be taken of generally recognized facts within the area of the department's specialized knowledge. Parties must 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. Parties must be given an opportunity to contest the
material so noticed. The special skills or knowledge of the department and its staff may be used in evaluating the evidence. (4) The PRS or any other party to an administrative hearing may apply for permission to obtain the testimony of a witness by telephone when it is impossible or impractical to obtain the physical presence of a witness in the hearing room due to the witness's age, illness, custodial restrictions, or residence more than 100 miles from the site of the hearing. (A) Application. Application for permission to secure testimony by telephone must be made to the presiding administrative law judge. Other parties must be notified of the application at least 10 days prior to the date of the administrative hearing. The application must state the reasons for the request. If the presiding administrative law judge finds that good cause exists to permit testimony to be obtained by telephone, he must grant the application and immediately
advise the parties. The administrative law judge must rule on the application at least five days prior to the administrative hearing. (B) Testimony. If testimony by telephone is allowed, the hearing room must be equipped with a speaker phone or other telephone equipment which will allow all parties, including the administrative law judge and the court reporter, to hear the statements of the witness simultaneously and will also allow the witness to hear all parties and the administrative law judge. The witness must be sworn and his testimony taken as if he were physically present at the hearing. (b) Subpoenas. On its own motion or on the written request of any party, on a showing of good cause, and on deposit of sums that reasonably ensure payment of the amounts estimated to accrue under this subsection, the department may issue a subpoena addressed to the sheriff or any constable to require attendance of witnesses and production of books, records,
papers, or other objects that may be necessary and proper for the purposes of the proceedings. These subpoenas may be issued by the commissioner or designee and the administrative law judge. Any party requesting a subpoena is responsible for preparation and service of the subpoena. Upon request, the Hearings Department will supply appropriate forms. If a party is not represented by an attorney, the administrative law judge may prepare the subpoena. (c) Depositions. (1) On its own motion or on any party's written request of and on deposit of sums that reasonably ensure payment of the amounts estimated to accrue under this subsection, the department may issue a commission, addressed to the several officers authorized by the statute to take depositions, to require that the deposition of a witness be taken. The commission authorizes the issuance of any subpoenas 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 purposes of the proceeding. The commission may be issued by the commissioner or his designee and the administrative law judge. The deposition of a member of an agency board may not be taken after a hearing date has been set. The deposition is taken according to the requirements of the Administrative Procedure and Texas Register Act, Texas Civil Statutes, Article 6252-13a. Any party desiring the issuance of a commission to take a deposition is responsible for the preparation and transmittal of the commission. Upon request, the Hearings Department will supply appropriate forms. If a party is not represented by an attorney, the administrative law judge may prepare the commission. (2) A deposition may be returned to the department either by mail, by a party interested in taking the deposition, or by any other person. If returned by mail, the department must endorse the deposition
to show that it was received from the post office. The department employee receiving the deposition must sign it. If it is not sent by mail, the person delivering it to the department must make an affidavit before a department representative that: (A) he received it from the hands of the officer before whom it was taken; (B) it has not been out of his possession since; and (C) it has undergone no alteration. (3) After the deposition is filed with the department, any department employee may open the deposition at the request of either party or his counsel. The employee must endorse the deposition by entering the date and the name of the person who asked that it be opened. The employee then signs the deposition. The deposition must remain on file with the department and may be inspected by any party. (d) Filing. Requests for commissions or subpoenas are addressed to the administrative law
judge. (e) Reimbursement of witness or deponent. (1) A witness or deponent who is not a party and who is subpoenaed or compelled to attend any hearing or proceeding to give a deposition or to produce books, records, papers, or other objects that are necessary for the proceeding is entitled to receive: (A) reimbursement for travel expenses in an amount generally applicable to state employees for traveling to and from the place of the hearing or the place where the deposition is taken. This is true if the place is more than 25 miles from the person's residence; (B) either a fee in an amount equal to the rate of per diem generally applicable to state employees, or $10 a day, whichever is greater, for each day or part of a day the person must be present as a witness or deponent. (2) Travel expenses and fees for nonemployee witnesses the department calls are paid by the program area
responsible for the abuse/neglect determination. Travel expenses and fees for nonemployee witnesses called by the petitioner are the petitioner's responsibility and fees payable to these witnesses are not governed by this subsection. (f) Failure to comply. If a person fails to comply with a subpoena or commission, the department, acting through the attorney general or the party requesting the subpoena or commission, may bring suit to enforce the subpoena or commission in a district court in Travis County or in the county in which a hearing conducted by the department is held.
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| Source Note: The provisions of this §730.1714 adopted to be effective January 1, 1990, 14 TexReg 5937; amended to be effective August 1, 1991, 16 TexReg 3779; amended to be effective January 1, 1992, 16 TexReg 6764; duplicated effective September 1, 1992, as published in the Texas Register September 11, 1992, 17 TexReg 6279.
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