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RULE §349.340Certified Officer's Answer and Consequence of Failure to File an Answer to Formal Charges (Default)

(a) The Certified Officer in a disciplinary matter shall file an answer to the formal charges and to every amendment thereof.

(b) The answer shall admit or deny each of the allegations in the formal charges or amendment thereof. If the Certified Officer intends to deny only a part of an allegation, the Certified Officer shall specify the portion that is true and shall deny only the remainder. The answer shall also include any other matter, whether of law or fact, upon which the Certified Officer intends to rely for his or her defense.

(c) If the Certified Officer fails to file a response to the formal charges, the matter will be considered as a default case.

(d) In a case of default, the Certified Officer will be deemed to have:

  (1) admitted all of the factual allegations in the formal charges;

  (2) waived the opportunity to show compliance with the law;

  (3) waived the opportunity for a hearing on the formal charges; and

  (4) waived objection to the sanction recommended in the formal charges.

(e) The Executive Director may recommend that the Board enter a default order, based upon the allegations set out in the formal charges, that adopts the sanction recommended in the formal charges.

(f) Upon consideration of the case, the Board may:

  (1) enter a default order under §2001.056 of the APA; or

  (2) order the matter to be set for a hearing at SOAH.

(g) The Certified Officer may amend his or her answer at any time permitted by the APA or SOAH rules.

(h) The first answer filed shall be entitled "answer," the first amended answer filed shall be entitled "first amended answer," and so forth.

(i) Any default judgment granted under this section will be entered on the basis of the factual allegations in the formal charges contained in the notice, and upon proof of proper notice to the Certified Officer. For purposes of this section, proper notice means notice sufficient to meet the provisions in §2001.054 of the Texas Government Code and §349.320 of this chapter. Such notice shall also include the following language in capital letters in 12 point boldface type: FAILURE TO FILE A WRITTEN ANSWER TO THE FORMAL CHARGES, EITHER PERSONALLY OR BY AUTHORIZED REPRESENTATIVE, MAY RESULT IN THE ALLEGATIONS CONTAINED IN THE FORMAL CHARGES BEING ADMITTED AS TRUE AND THE RELIEF SOUGHT BY THE COMMISSION IN THE NOTICE OF HEARING MAY BE GRANTED BY DEFAULT.

(j) A motion for rehearing that requests the Board vacate its default order under this section shall be granted if the Certified Officer proves by a preponderance of the evidence that the failure to answer the formal charges was not intentional or the result of conscious indifference, but due to accident or mistake, provided that the Certified Officer has a meritorious defense to the factual allegations contained in the formal charges and the granting thereof will not cause delay or otherwise create a hardship for the Board.

Source Note: The provisions of this §349.340 adopted to be effective May 1, 2010, 35 TexReg 3289

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