| (a) The hearing is similar to a civil court trial,
but is less formal. The parties to the hearing are the employee and
DFPS.
(b) The hearing is conducted by an administrative law
judge who has the duty to provide a fair and impartial hearing and
to ensure that the available and relevant testimony and evidence are
presented in an orderly manner. The administrative law judge has authority
to administer oaths, issue subpoenas, and order discovery.
(c) Prior to the hearing, the employee may request
a copy of the investigation record, edited to remove the identity
of the reporter and any other confidential information to which the
employee is not entitled. The administrative law judge will only issue
subpoenas or order additional discovery upon request of a party and
a finding of good cause for the issuance or order.
(d) Both parties will be given the opportunity to present
their own testimony and evidence, as well as the testimony and evidence
of witnesses. Any person who provides testimony at the hearing will
be sworn under oath.
(e) Both parties will be given the opportunity to examine
the evidence presented by the other party, to cross-examine any witnesses
presented by the other party, and to rebut or respond to the evidence
presented by the other party.
(f) Testimony of a witness may be presented by written
affidavit, but may be given less weight than the credible testimony
of a witness who testifies in person, under oath, subject to cross-examination.
(g) Presentation of evidence at the hearing is not
restricted under the rules of evidence used in civil cases. The administrative
law judge will admit evidence if it is of a type on which a reasonably
prudent person commonly relies in the conduct of the person's affairs.
Evidence will not be admitted if it is irrelevant, immaterial, unduly
repetitious, or precluded by statutory law.
(h) Both parties have the right to be represented at
the hearing by a person of their choosing who may be, but is not required
to be, an attorney.
(i) The administrative law judge will assist either
party in presenting their evidence and testimony, as needed, to ensure
that a complete and proper record is developed at the hearing.
(j) The administrative law judge will arrange to have
an interpreter available for the hearing if a party or witness requires
an interpreter in order to effectively participate in the hearing.
(k) The hearing will be recorded by audio or video
tape in order to preserve a record of the hearing. A transcription
of the hearing tape will not be made or provided unless an employee
seeks judicial review, as provided in this subchapter. The costs of
transcribing the testimony and preparing the record for judicial review
shall be paid by the party who files for judicial review, unless the
party establishes indigence as provided in Rule 20 of the Texas Rules
of Appellate Procedure.
(l) The hearing is closed to the general public consistent
with the required statutory confidentiality of DFPS records. Only
the employee, the employee's representative, and any testifying witnesses
may attend the hearing.
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