| (a) The provisions of this section shall apply to licensees
under this subchapter, notwithstanding the provisions of §442.103
of this title (relating to Procedure for Contested Cases for Counselor
and Facility Licenses).
(b) Where the department has issued a notice of violation
that has not been resolved by informal disposition and the respondent
has timely requested a hearing, the department will proceed to a hearing
under the APA, Texas Government Code, Chapter 2001; SOAH Rules of
Procedure, 1 Texas Administrative Code, Chapter 155; and formal hearing
procedures set forth at §§1.21, 1.23, 1.25, and 1.27 of
this title.
(c) The department will provide written notice of the
hearing to the respondent by first class mail and certified mail,
return receipt requested, at respondent's last known address as reflected
in the department's address of record for the respondent. A Notice
of Hearing that complies with the requirements of Texas Government
Code, §2001.051 and §2001.052 (relating to Opportunity for
Hearing and Participation; Notice of Hearing and Contents of Notice),
and 1 Texas Administrative Code §155.401 (relating to Notice
of Hearing), will be provided at least ten days before the date of
the hearing. Respondent's receipt of the Notice of Hearing at least
ten days before the date of the hearing will be presumed if the department
mailed the Notice of Hearing at least ten days before the date of
the hearing, and allowed an additional three days for mailing.
(d) If the respondent fails to appear at a scheduled
SOAH hearing after being given proper notice of the hearing at respondent's
last known address as reflected in the department's address of record
for the respondent, the department may move for dismissal of the case
from the SOAH docket, without prejudice, to allow for informal disposition
of the case by default order, as provided for in §1.25 of this
title (relating to Default). Based upon the respondent's failure to
appear after proper notice of the hearing, the factual allegations
of the notice letter may be deemed true and shall form the basis of
a final default order by the department making findings of fact and
conclusions of law consistent with the notice of violation, and implementing
the proposed action.
(e) If a respondent makes a written request to the
department for a transcript of a SOAH proceeding, the department will
assess the cost of the transcript to that respondent. If there were
multiple respondents to the proceeding, the department will assess
the cost proportionally among those respondents requesting a transcript.
Where a respondent appeals a final department decision in a contested
case, the respondent shall pay the cost of preparation of the original
or a certified copy of the record that is required to be sent to the
reviewing court, and such charge may be assessed against respondent
by the court in accordance with the Texas Rules of Civil Procedure
as a court cost.
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