| (C) If any party has appeared in the proceeding by attorney
or other representative authorized to make an appearance, the attorney or
other representative must be served. The willful failure of any party to make
such service will be sufficient grounds for the administrative law judge to
enter an order striking the pleading from the record.
(3) Prehearing Conference. On the motion of the petitioner
or the respondent or on his/her own motion, the administrative law judge may
direct the parties and their attorneys or representative to appear before
him at a specified time and place for a conference before the hearing for
the purpose of formulating issues and considering:
(A) the possibility of making admissions of certain averments
of facts or stipulations to avoid the unnecessary introduction of proof;
(B) the simplification of issues;
(C) the procedure at the hearing;
(D) the specification of the number of witnesses;
(E) matters to be officially noted;
(F) the mutual exchange of prepared testimony and exhibits;
(G) the date discovery is to be closed; and
(H) such other matters as may aid in the simplification of
the proceedings and the disposition of the matters in controversy.
(4) Discovery and Depositions.
(A) Discovery shall be provided and governed by Texas Government
Code, Chapter 2001, Subchapter D, (the Administrative Procedure Act), and
where no conflict exists with said Act, with the Texas Rules of Civil Procedure.
(B) Depositions shall be taken in accordance with the requirements
of Texas Government Code, Chapter 2001, Subchapter D, (the administrative
Procedure Act), and where no conflict exists with said Act, with the Texas
rules of Civil Procedure.
(C) On its own motion or on the written request of a party,
and on deposit of an amount that will reasonably ensure payment of the amount
estimated to accrue under Texas Government Code, §2001.103, the Texas
Department of Criminal Justice shall issue a commission, addressed to the
officers authorized by statute to take a deposition, requiring that the deposition
of a witness be taken. The commission shall also authorize the issuance of
any subpoena 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 purpose of the hearing.
(5) Rules of Evidence.
(A) In hearings under these rules, irrelevant, immaterial,
or unduly repetitious evidence shall be excluded. The rules of evidence as
applied in non-jury civil cases in the district courts of the state shall
be followed. However, evidence may be admitted if it is necessary to ascertain
facts not reasonably susceptible of proof under the rules of evidence applicable
to non-jury civil cases in district court, is not precluded by statute, and
is of a type on which a reasonably prudent person commonly relies in the conduct
of the person's affairs. Objections to evidentiary offers may be made and
shall be noted in the record.
(B) Documentary evidence may be received by the administrative
law judge in the form of a copy or excerpt if the original is not readily
available. On request, either party shall be given an opportunity to compare
the copy with the original.
(C) If a hearing will be expedited and the interests of the
parties will not be prejudiced substantially, any part of the evidence may
be received in written form or the parties may stipulate as to facts or circumstances
or summarize same.
(D) Either party may conduct cross-examination as required
for a full and true disclosure of the facts.
(E) On its own motion or on the written request of a party,
the Texas Department of Criminal Justice shall issue a subpoena addressed
to the sheriff or to a constable to require the attendance of a witness or
the production of books, records, papers, or other objects that may be necessary
and proper for the purposes of a proceeding if:
(i) good cause is shown; and
(ii) an amount is deposited that will reasonably ensure payment
of the amounts estimated to accrue under Texas Government Code, §2001.103.
(F) Official notice may be taken by the administrative law
judge of all facts judicially cognizable and generally recognized facts within
the area of the agency's specialized knowledge. Parties shall 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, and afforded an opportunity to contest the material so noticed.
(G) Upon notifying all parties, the administrative law judge
may communicate with division or agency employees who have not participated
in the hearing, to use the special skills or knowledge of the division and
agency and its staff in evaluating the evidence. The administrative law judge
may allow all parties to be present during this communication and at his sole
discretion, may allow parties to question the employee.
(H) Ex parte consultations. Any information considered by the
administrative law judge in deciding the contested case must be shared with
all parties. Private (ex parte) consultations, whether oral or written, about
the substantive issues of the contested case are allowed only if their substance
is shared with all parties.
(I) Formal exceptions to rulings of the administrative law
judge during the hearing shall be unnecessary. It shall be sufficient that
the party at the time any ruling is made or sought shall have made known to
the administrative law judge the action desired. When testimony is excluded
by the administrative law judge, the party offering such evidence shall be
permitted to make an offer of proof by dictating or submitting in writing
the substance of the proposed testimony prior to the conclusion of the hearing,
and such offer of proof shall be sufficient to preserve the point for review.
The administrative law judge may ask such questions of the witness as he deems
necessary to satisfy himself that the witness would testify as represented
in the offer of proof.
(6) Recording of Proceedings.
(A) The proceedings of the hearing shall be electronically
recorded. Upon request of any party to the proceedings, a copy of such recording
shall be made available to the requesting party at cost.
(B) Any party to the proceedings may request the presence of
a court reporter to record the proceedings. Selection and payment for the
services of the reporter shall be borne by the requesting party. All costs
of transcriptions of any recordings shall be at the expense of the requesting
party. A transcription becomes official when certified by the administrative
law judge.
(7) Conduct of Hearings.
(A) The administrative law judge is in charge of the proceedings.
The administrative law judge has the authority to administer oaths, examine
witnesses, direct the issuance of subpoenas, and rule on the admissibility
of evidence and amendments to pleadings. He may also establish reasonable
time limits for conducting individual hearings, request additional information,
and issue intermediate orders. The administrative law judge has the authority
to issue any orders necessary to enforce his rulings. These include, but are
not limited to:
(i) exclusion of evidence or witnesses;
(ii) exclusion of oral argument;
(iii) summary orders or default judgment on any issues; or
(iv) postponement or dismissal of the hearing with or without
prejudice.
(B) The petitioner shall open and present its evidence to establish
its position on the matters involved. The respondent shall follow and present
its evidence. The petitioner and respondent may thereafter present rebuttal
evidence only. The petitioner shall be given the opportunity to offer final
argument and the respondent the opportunity to respond in final argument but
no additional evidence shall be presented absent leave of the administrative
law judge for good cause shown.
(C) Continuances. Continuances may be granted by the administrative
law judge hearing the contested case. Motions for continuance shall be governed
by §155.33(b) and (c) of this title.
(8) Miscellaneous
(A) Place of Filing. All notices, pleadings, motions, answers,
affidavits, and other filings in a contested case shall be filed with the
State Office of Administrative Hearings at 300 West 15th Street, Suite 502,
Austin, Texas 78701-1649.
Cont'd... |
