| (a) Final decision or proposal for decision on summary
disposition. Summary disposition shall be granted on all or part of
a contested case if the pleadings, the motion for summary disposition,
and the summary disposition evidence show that there is no genuine
issue as to any material fact and that the moving party is entitled
to a decision in its favor as a matter of law on all or some of the
issues expressly set out in the motion. Summary disposition is not
permitted based on the ground that there is no evidence of one or
more essential elements of a claim or defense on which the opposing
party would have the burden of proof at hearing.
(b) Deadlines. Unless otherwise ordered by the judge:
(1) A party may file a motion for summary disposition
at any time after SOAH acquires jurisdiction over a case, but the
motion must be filed at least 30 days before a scheduled hearing on
the merits.
(2) The response and opposing summary disposition evidence
shall be filed no later than 15 days after the filing of the motion.
(c) Contents of Motion. A motion for summary disposition
shall include the contents listed below. A motion may be denied for
failure to comply with these requirements.
(1) The motion shall state the specific issues upon
which summary disposition is sought and the specific grounds justifying
summary disposition.
(2) The motion shall also separately state all material
facts upon which the motion is based. Each material fact stated shall
be followed by a clear and specific reference to the supporting summary
disposition evidence.
(3) The first page of the motion shall contain the
following statement in at least 12-point, bold-face type: "Notice
to parties: This motion requests the judge to decide some or all of
the issues in this case without holding an evidentiary hearing on
the merits. You have 15 days after the filing of the motion to file
a response. If you do not file a response, this case may be decided
against you without an evidentiary hearing on the merits. See SOAH's
rules at 1 Texas Administrative Code §155.505. These rules are
available on SOAH's public website."
(d) Responses to motions.
(1) A party may file a response and summary disposition
evidence to oppose a motion for summary disposition.
(2) The response shall include all arguments against
the motion for summary disposition, any objections to the form of
the motion, and any objections to the summary disposition evidence
offered in support of the motion.
(e) Summary disposition evidence.
(1) Summary disposition evidence may include deposition
transcripts; interrogatory answers and other discovery responses;
pleadings; admissions; affidavits; materials obtained by discovery;
matters officially noticed; stipulations; authenticated or certified
public, business, or medical records; and other admissible evidence.
No oral testimony shall be received at a hearing on a motion for summary
disposition.
(2) Summary disposition may be based on uncontroverted
written testimonial evidence of an interested witness, or of an expert
witness as to subject matter concerning which the judge must be guided
solely by the opinion testimony of experts, if the evidence is clear,
positive and direct, otherwise credible and free from contradictions
and inconsistencies, and could have been readily controverted.
(3) All summary disposition evidence offered in support
of or in opposition to a motion for summary disposition shall be filed
with the motion or response. Copies of relevant portions of materials
obtained by discovery that are relied upon to support or oppose a
motion for summary disposition shall be included in the summary disposition
evidence.
(f) Proceedings on motions.
(1) A judge may hold a hearing on a motion for summary
disposition or rule on the motion without a hearing.
(2) If summary disposition is granted on all contested
issues in a case, the record shall close on the date ordered by the
judge or on the later of the filing of the last summary disposition
arguments or evidence, the date the summary disposition response was
due, or the date a hearing was held on the motion. The judge shall
prepare a final decision or proposal for decision as appropriate.
The final decision or proposal for decision shall include a statement
of reasons, findings of fact, and conclusions of law in support of
the summary disposition rendered.
(3) If summary disposition is granted on some but not
all of the contested issues in a case, the judge shall not take evidence
or hear further argument upon the issues for which summary disposition
has been granted. The judge shall issue an order:
(A) specifying the facts about which there is no genuine
issue;
(B) specifying the issues for which summary disposition
has been granted; and
(C) directing further proceedings as necessary. If
an evidentiary hearing is held on the remaining issues, the facts
and issues resolved by summary disposition shall be deemed established,
and the hearing shall be conducted accordingly. After the evidentiary
hearing is concluded, the judge shall include in the final decision
or proposal for decision a statement of reasons, findings of fact,
and conclusions of law in support of the partial summary disposition
rendered.
|
| Source Note: The provisions of this §155.505 adopted to be effective November 26, 2008, 33 TexReg 9451; amended to be effective July 16, 2013, 38 TexReg 4509; amended to be effective January 1, 2017, 41 TexReg 8593 |
