| (3) The executive director's issuance of a final order
following a contested case hearing is a purely ministerial act, and
that if by inaction the executive director does not issue a final
order within the time frame established by the CDA or design-build
contract, then a final order in a form recommended by the administrative
law judge shall be deemed to be automatically issued.
(4) As allowed by Government Code, §2001.144 and §2001.145,
an order issued by the executive director after a contested case hearing
is final on the date issued and no motion for rehearing is required
to appeal the final order.
(5) An executive director's order remanding a dispute
to a disputes board, or an executive director's order implementing
a disputes board decision following a contested case hearing before
SOAH, are subject to judicial review under Government Code, Chapter
2001, under the substantial evidence rule. Review is limited to whether
disputes board error occurred.
(k) Other department rules on a contested case hearing.
(1) The parties may agree in the CDA or design-build
contract to adopt, modify or not follow procedural provisions, deadlines,
evidentiary rules, and any other matters set out in Chapter 1, Subchapter
E of this title (relating to Procedures in Contested Cases).
(2) In the event of any conflict or difference between
the procedures set out in this section or a CDA or design-build contract,
and in Chapter 1, Subchapter E, of this title, the procedures in this
section or the CDA or design-build contract shall govern with respect
to any proceeding before SOAH.
(3) In the event of an appeal to SOAH of a disputes
board decision:
(A) the department shall present a copy of this section
to SOAH as a written statement of applicable rules or policies, under
Government Code, §2001.058(c); and
(B) the parties shall request that the administrative
law judge modify and supplement SOAH contested case procedures as
necessary or appropriate, and consider this section, consistent with
1 TAC §155.3 (relating to Application and Construction of this
Chapter).
(C) the parties shall provide the administrative law
judge with a stipulation that the substantive provisions, scope of
review, and procedural provisions of this section and the CDA or design-build
contract shall apply to and govern the contested case proceeding before
SOAH, consistent with 1 TAC §155.417 (relating to Stipulations).
(l) Mandamus relief. Nothing in this section shall
restrict a developer's or design-build contractor's rights to seek
mandamus relief pursuant to Government Code, §22.002(c) if the
executive director fails to perform one or more of the ministerial
acts set out in this section and included in the CDA or design-build
contract as a ministerial act, or any other act specified in the CDA
or design-build contract as a ministerial act.
(m) Confidential information.
(1) The parties may agree that, with respect to the
mandatory informal dispute resolution process required under subsection
(d)(2) of this section, communications between the parties to resolve
a dispute, and all documents and other written materials furnished
to a party or exchanged between the parties during any such informal
resolution procedure, shall be considered confidential and not subject
to disclosure by either party.
(2) The parties may agree that with respect to a proceeding
before the disputes board, an administrative hearing before an administrative
law judge, or a judicial proceeding in court, either or both parties
may request a protective order to prohibit disclosure to third persons
of information that the party believes is a trade secret, proprietary,
or otherwise entitled to confidentiality under applicable law.
|
| Source Note: The provisions of this §9.6 adopted to be effective December 7, 2006, 31 TexReg 9749; amended to be effective September 15, 2011, 36 TexReg 5948; amended to be effective September 20, 2012, 37 TexReg 7299 |
