(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.
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