| (a) Formal administrative hearings in contested cases
shall be conducted in accordance with the APA, SOAH rules, the Texas
Occupations Code, and Board rules. SOAH acquires jurisdiction over
the case when the Board staff files a Request to Docket Case Form
accompanied by legible copies of all pertinent documents including,
but not limited to, the Formal Complaint, petition, application, or
other document describing the agency action giving rise to a contested
case.
(b) When a case has been docketed before SOAH, Board
staff shall provide a Notice of Hearing to all parties in accordance
with §2001.052, Texas Government Code, and applicable SOAH rules.
(c) In disciplinary cases, the Respondent shall enter
an appearance by filing a written Answer or other responsive pleading
with SOAH and provide a copy to Board staff, within twenty (20) days
of the date on which the Notice of Hearing is served to the Respondent.
For purposes of this section, an entry of an appearance shall mean
the filing of a written Answer or other responsive pleading.
(d) The failure of the Respondent to timely enter an
appearance as provided in this section shall entitle the Board staff
to a continuance at the time of the hearing in the contested case
for such reasonable period of time as determined by the ALJ.
(e) The Notice of Hearing provided to a Respondent
for a contested case shall include the following language in capital
letters in 12-point boldface type: FAILURE TO ENTER AN APPEARANCE
BY FILING A WRITTEN ANSWER OR OTHER RESPONSIVE PLEADING TO THE FORMAL
COMPLAINT WITHIN TWENTY (20) DAYS OF THE DATE THIS NOTICE WAS MAILED,
SHALL ENTITLE THE STAFF TO A CONTINUANCE AT THE TIME OF THE HEARING.
(f) If a Respondent fails to appear in person or by
attorney on the day and at the time set for hearing in a contested
case, regardless of whether an appearance has been entered, the ALJ,
pursuant to SOAH's rules, shall, upon adequate proof that proper notice
under the APA and SOAH rules was served upon the defaulting party,
enter a default judgment in the matter adverse to the Respondent.
Such notice shall have included in 12-point, boldface type, the fact
that upon failure of the party to appear at the hearing, the factual
allegations in the notice will be deemed admitted as true and the
relief sought in the proposed recommendation by the staff shall be
granted by default.
(g) 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 of Hearing, 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 §§2001.051, 2001.052, and 2001.054, as well as §107.17
of this title. Such Notice of Hearing also shall include the following
language in capital letters in 12-point boldface type: FAILURE TO
APPEAR AT THE HEARING IN PERSON OR BY LEGAL REPRESENTATIVE, REGARDLESS
OF WHETHER AN APPEARANCE HAS BEEN ENTERED, 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.
(h) A Motion to Vacate the Default Judgment rendered
by the ALJ must be filed within ten (10) days of service of Notice
of the Default Judgment.
(1) The Motion to Vacate the Default Judgment shall
be granted if movant proves by the preponderance of the evidence that
the failure to attend the hearing was not intentional or the result
of conscious indifference, but due to accident or mistake, provided
that the Respondent has a meritorious defense to the factual allegations
contained in the Formal Complaint and granting the motion will occasion
no delay or otherwise work an injury to the Board.
(2) If the Motion to Vacate the Default Judgment is
granted, it shall be the responsibility of the parties to either settle
the matter informally or to request a rehearing on the merits. Whenever
possible, the rehearing of the case shall occur with the ALJ that
heard the default matter.
(i) Because of the often voluminous nature of the records
properly received into evidence by the ALJ, the party introducing
such documentary evidence shall paginate each such exhibit or flag
pertinent pages in each such exhibit in order to expedite the hearing
and the decision-making process.
(j) Within the time line set out in the SOAH rules,
after the conclusion of the hearing the ALJ shall prepare and serve
on the parties a Proposal for Decision that includes the ALJ's findings
of fact and conclusions of law.
(k) Each hearing may be recorded by a court reporter
in accordance with the APA and SOAH rules. The cost of the transcription
of the statement of facts shall be borne by the party requesting the
transcript and said request shall be sent directly to the court reporter
and the requesting party shall notify the other party in writing of
the request.
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