| (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.
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