(a) Upon proof by DPS that notice of the hearing on
the merits was sent to defendant's or, if defendant has legal representation,
to defense counsel's last known address, and that notwithstanding
such notice, defendant failed to appear, defendant's right to a hearing
on the merits is waived. A rebuttable presumption that proper notice
was given to defendant may be established by the introduction of a
notice of hearing dated not less than 11 days prior to the hearing
date and addressed to defendant's or defense counsel's last known
address, as reflected on defendant's notice of suspension, request
for hearing, driving record or similar documentation presented by
DPS. Under those circumstances, the judge will proceed in defendant's
absence and enter a default order upon DPS's motion.
(b) Within ten business days of the default, the defendant
may file a written motion with SOAH and DPS requesting that the default
order be vacated because the defendant had good cause for failing
to appear. In the motion, the defendant must state whether DPS opposes
the motion, and if DPS does oppose the motion, list dates and times
for a hearing on the motion that are agreeable to both parties. Whether
or not DPS opposes the motion, the judge may rule on the motion without
setting a hearing or may set a hearing to consider the motion. A hearing
on a motion to vacate a default order may be held by telephone conference
call. If the judge finds good cause for the defendant's failure to
appear, the judge shall vacate the default order and reset the case
for a hearing.
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Source Note: The provisions of this §159.213 adopted to be effective January 20, 2009, 34 TexReg 334; amended to be effective November 19, 2014, 39 TexReg 8958; amended to be effective January 1, 2017, 41 TexReg 9459 |