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RULE §705.1527How is the EMR conducted?

(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.

Source Note: The provisions of this §705.1527 adopted to be effective February 1, 2021, 46 TexReg 317

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