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RULE §815.32Timeliness

(a) Unless otherwise specified in this chapter, appeals time frames are generally determined within these guidelines:

  (1) as established in the Texas Unemployment Compensation Act; and

  (2) are extended one working day following a deadline which falls on a weekend, an official state holiday, a state holiday for which minimal staffing is required, or a federal holiday.

(b) Presumption of receipt. A document mailed to a party is presumed to be received if the document was mailed to the complete, correct address of record unless:

  (1) there is tangible evidence of nondelivery, such as the document being returned to the Agency by the United States Postal Service; or

  (2) credible and persuasive evidence is submitted to the Agency to establish nondelivery, delayed delivery, or misdelivery of the document.

(c) Address for proper mailing.

  (1) For a claimant, the proper address is the address given by the claimant to the Agency subject to later changes given by the claimant to the Agency.

  (2) For an employer, the proper address is determined under §815.3 of this chapter (relating to Addresses) unless the employer has specifically requested a mailing address change in a protest, appeal, or other correspondence, or at a hearing.

  (3) For governmental employers, the group account address shall be used, if applicable.

  (4) Mailing of notice to a party representative, whether or not an attorney, is required to bind parties to timeliness rules.

  (5) If a party provides the Agency with the party's own incorrect mailing address, an Agency mailing to that address shall be a proper mailing, even if there is proof that the document was never received by the party.

  (6) The Agency is not responsible for effectuating an address change when it is listed in correspondence or merely listed by a party on an appeal filed in person, unless the Agency is specifically directed by the party to mail subsequent notices to the address.

  (7) If the Agency improperly addresses a document, the time frame for filing an appeal shall begin to run as of the actual date of receipt by the party, even if received by the party within the statutory appeal time frame. However, this subsection does not apply if the party provided an incorrect address under subsection (c)(5) of this section.

  (8) Addresses shall be positively verified by hearing officers, who shall also explain to parties the importance of the address being correct and the fact that subsequent appeal deadlines run from the date of mailing, not the date of receipt by the party.

(d) Receipt Date.

  (1) Receipt date is date of receipt at the earliest of an Agency, or agent state office, or a workforce center or a Board office.

  (2) If an appeal is received at an agent state office or a workforce center or a Board office(s), but the appeal is not dated by the receiving entity, and is forwarded to the appeals (or interstate) processing unit and is dated by that unit, then the appeal date shall be set at three business days earlier than receipt in appeals (or interstate).

(e) Appeal Date.

  (1) The appeal date for a document received via United States Postal Service shall be the postmark date or the postal meter date (where there is only one or the other); but where there is both a postmark date and a postal meter date and they conflict, the postmark date controls.

  (2) The date a document is delivered to a common carrier (such as Federal Express, Purolator, or other common carrier) controls as the date the appeal is perfected. (Delivery to carrier is equivalent to delivery to United States Postal Service; date of delivery to carrier is equivalent to postmark date.)

  (3) An appeal received in an envelope bearing no legible postmark or postal meter date shall be considered to be perfected three business days before receipt by the Agency, or on the date of the document, if the document date is less than three days earlier than date of receipt.

  (4) If the mailing envelope is lost after delivery to the Agency, appeal document date shall control. If the document is undated, appeal date shall be three business days before receipt by the Agency, subject to sworn testimony establishing an even earlier date.

  (5) If a determination, decision or other written material provides for an appeal by fax, or in an electronic form approved by the Agency in writing, then the appeal date shall be the date and time the appeal is received by the Agency.

(f) Sworn testimony can establish a date for an appeal being perfected, which is earlier than the dates established under subsections (d) and (e) of this section. Only in the face of extremely credible evidence shall a party be allowed to establish an appeal date earlier than a postal meter date, or the date of the document itself. When a party alleges filing an appeal which the Agency has never received, the party must present credible and persuasive testimony of timely filing corroborated by testimony of a disinterested party and/or physical evidence specifically linked to the appeal in question.

(g) Credible and persuasive testimony subject to cross-examination establishing timeliness allows the Agency or the appeal tribunal to rule on the merits.

(h) If a party submits an address change to the Agency during the appeal period (but after the Agency document was mailed to the old address), address change date shall control and shall be considered as the date the appeal was perfected.

(i) Exceptions. The substantive nature of certain cases causes, or creates, exceptions to the general timeliness rules, even where notice is proper or response is clearly late.

  (1) Cases fitting into the wage credits/validity of claim category present a one-time exception to the timeliness rules. A late appeal to the appeal tribunal on the issues, if within the same benefit year, shall be deemed timely. However, once a decision has been issued by the appeal tribunal, the appeal time limits in the Act, Chapter 212, shall apply.

  (2) In cases dealing with the imposition of fraud and forfeiture provisions of the Act, §214.003, there is a one-time exception at the appeal tribunal stage, if:

    (A) the claimant is out of claim status; and

    (B) if the claimant has moved.

  (3) In cases where there is a continuing ineligibility or condition and there is a late appeal, the appeal tribunal or the Commission can assume jurisdiction 14 days before the late appeal, and rule on the merits if the facts so warrant.

  (4) If a chargeback ruling is required, but is omitted, the determination or decision does not become final for the employer; it does become final for the claimant.

  (5) In a case where it is ultimately determined that there has been no separation from employment, all rulings are void and all rulings can be set aside at any time.

  (6) When there has been a ruling protecting an employer's account on a separation in one benefit year, the employer is not required to timely protest or appeal a ruling on the same separation in a subsequent year.

  (7) Timeliness sanctions shall not apply when an Agency representative or a representative of a Board or an agent state representative has given misleading information on appeal rights to a party, if the party:

    (A) specifically establishes how the party was misled; or

    (B) specifically establishes what the party was told that was misleading and, if possible, by whom the party was misled.

  (8) There is no good cause exception to the timeliness rules.

Source Note: The provisions of this §815.32 adopted to be effective November 6, 2000, 25 TexReg 11093

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