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TITLE 22EXAMINING BOARDS
PART 39TEXAS BOARD OF PROFESSIONAL GEOSCIENTISTS
CHAPTER 851TEXAS BOARD OF PROFESSIONAL GEOSCIENTISTS LICENSING AND ENFORCEMENT RULES
SUBCHAPTER EHEARINGS--CONTESTED CASES AND JUDICIAL REVIEW
RULE §851.203Defaults

(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 Board.

(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Hearings, the administrative law judge must dismiss the case for want of prosecution, any relevant application will be withdrawn, and the TBPG may not consider a subsequent application from the party until the first anniversary of the date of dismissal of the case at the State Office of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the Appointed Board will issue a final order referring to this rule and advising the applicant that the application was withdrawn and the applicant may reapply for licensure one year after the date the Appointed Board signs the final order.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 the following:

  (1) the default was neither intentional nor the result of conscious indifference;

  (2) the respondent or applicant has a meritorious case or defense;

  (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

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