|(a) The Appointed Board may serve the notice of hearing
on the respondent by sending it to his or her last known address as
shown by the TBPG's records.
(b) Default. If the party who does not have the burden
of proof fails to appear at a contested-case hearing at the State
Office of Administrative Hearings, the administrative law judge may
issue a default proposal for decision that can be adopted by the Appointed
(c) Failure to issue default proposal for decision.
If the administrative law judge grants a default but does not issue
a default proposal for decision and instead issues an order dismissing
the case or remanding the case back to TBPG and returning the file
to the TBPG for informal disposition on a default basis in accordance
with section 2001.056 of the Texas Government Code, the allegations
in the notice of hearing will be deemed as true and proven, and the
Appointed Board will issue a final order imposing a sanction requested
in the notice of hearing.
(d) Failure to prosecute. If an applicant for licensure
fails to appear at a contested case hearing at the State Office of
Administrative Hearings, the administrative law judge must dismiss
the case for want of prosecution, any relevant application will be
withdrawn, and the TBPG may not consider a subsequent application
from the party until the first anniversary of the date of dismissal
of the case at the State Office of Administrative Hearings. If the
administrative law judge dismisses the case and returns the file to
the Appointed Board for informal disposition on a default basis in
accordance with §2001.056 of the Texas Government Code, the Appointed
Board will issue a final order referring to this rule and advising
the applicant that the application was withdrawn and the applicant
may reapply for licensure one year after the date the Appointed Board
signs the final order.
(e) Applicants for licensure bear the burden to prove
fitness for licensure.
(f) Contesting a final order issued following a default
or dismissal for failure to prosecute. In the event that the respondent
or applicant wishes to contest a final order issued following a default
or dismissal for failure to prosecute, the respondent or applicant
must timely file a motion for rehearing as provided by Chapter 2001
of the Texas Government Code, and the motion for rehearing must show
(1) the default was neither intentional nor the result
of conscious indifference;
(2) the respondent or applicant has a meritorious case
(3) a new hearing will not harm the TBPG; and
(4) the motion for rehearing must be supported by affidavits
and documentary evidence of the above and show a prima facie case
in the movant's favor.
|Source Note: The provisions of this §851.203 adopted to be effective November 24, 2016, 41 TexReg 9138; amended to be effective September 25, 2017, 42 TexReg 5143; amended to be effective October 31, 2018, 43 TexReg 7140