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RULE §107.24Respondent's Answer in a Disciplinary Matter

(a) The Respondent in a disciplinary matter shall file an Answer to the Formal Complaint and to any Amendment to the Formal Complaint.

(b) The Answer shall admit or deny each of the allegations in the Formal Complaint or Amendment.

(c) If the Respondent fails to file an Answer to the Formal Complaint within twenty days of the date of service, the matter shall be considered a default case.

(d) In a case of default, the Respondent will be deemed to have

  (1) admitted all the factual allegations in the Formal Complaint;

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

  (3) waived the opportunity for a hearing on the Formal Complaint; and

  (4) waived objection to the recommended sanction in the Formal Complaint.

(e) If the Respondent fails to file a written Answer within the time period prescribed by these rules, the Executive Director may recommend that the Board enter a Default Order, based upon the allegations set out in the Formal Complaint, which adopts the sanction that was recommended in the Formal Complaint or evidence presented at the hearing.

(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 Respondent 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 Complaint contained in the Notice, and upon proof of proper notice to the Respondent. For purposes of this section, proper notice means notice sufficient to meet the provisions of the Texas Government Code §2001.054 and §107.17 of this title. 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 COMPLAINT, EITHER PERSONALLY OR BY LEGAL REPRESENTATIVE, WILL RESULT IN THE ALLEGATIONS CONTAINED IN THE FORMAL COMPLAINT BEING ADMITTED AS TRUE AND THE PROPOSED RECOMMENDATION OF STAFF SHALL BE GRANTED BY DEFAULT.

(j) A Motion for Rehearing which requests that the Board vacate its Default Order under this section shall be granted if the movant proves by the preponderance of the evidence that the failure to answer the Formal Complaint was not intentional or the result of conscious indifference, but due to accident or mistake--provided that the movant has a meritorious defense to the factual allegations contained in the Formal Complaint and vacating the Default Order will occasion no delay or otherwise work an injury to the Board.

Source Note: The provisions of this §107.24 adopted to be effective September 14, 2010, 35 TexReg 8342; amended to be effective September 30, 2012, 37 TexReg 7484

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