| (a) If a party fails to appear for the hearing, the
judge, on his or her own motion or on request of the opposing party,
may proceed in that party's absence on a default basis.
(b) For a telephone or videoconference hearing, the
following may be considered a failure to appear and grounds for default,
if the conditions exist for more than fifteen minutes after the scheduled
time for hearing:
(1) failure to attend the telephone conference call
or videoconference at the scheduled time; or
(2) failure to exercise due diligence to address a
technical difficulty with attending a videoconference by contacting
the SOAH Chief Clerk's Office for assistance or by utilizing the option
to access the hearing audio by telephone.
(c) A default under this section must be supported
by adequate proof that the notice of hearing was properly filed and
served in accordance with §159.53 of this title (relating to
Filing Documents) and §159.55 of this title (relating to Service
of Documents on Parties).
(1) A rebuttable presumption that proper notice was
given to a defendant is established by evidence that the notice of
hearing was electronically served to the defendant, or if defendant
has legal representation, to defense counsel, at the email address
provided under §159.53 and §159.55 of this title, or at
the email address as reflected on defendant's request for hearing.
Alternatively, the judge may consider evidence that the notice of
hearing was timely provided to defendant or if defendant has legal
representation, to defense counsel, at the mailing address reflected
on defendant's notice of suspension, driving record, or similar documentation
presented by DPS.
(2) A rebuttable presumption that proper notice was
given to DPS is established by evidence that information regarding
the date, time, and location or method of appearance was electronically
transmitted to the Department by the SOAH Chief Clerk's Office or
issued by the judge to the DPS attorney of record at the email address(es)
reflected in eFile Texas. Alternatively, the judge may consider evidence
that notice of the scheduled hearing was published on SOAH's website
and/or available to DPS through re:SearchTX.
(d) Defendant's Failure to Appear. A Defendant who
requests a hearing and fails to appear without good cause waives the
right to a hearing on the merits, and the judge will issue a decision
and order authorizing the Department to suspend the Defendant's driver's
license.
(e) Department's Failure to Appear. If the Department
fails to appear through its attorney without good cause, the judge
will issue an order dismissing the case without suspension or disqualification.
A case dismissed under this subsection is dismissed with prejudice
and may not be refiled.
(f) Within ten business days after the issuance of
a default decision and order, the defaulting party may file a written
motion with SOAH requesting that the default order be vacated because
the party had good cause for failing to appear. In the motion, the
party must state the grounds for their failure to appear and whether
the motion is opposed. Regardless of whether the motion is opposed,
the judge may rule on the motion without setting a hearing or may
set a hearing to consider the motion. A hearing on a motion to vacate
a default order may be held by videoconference or telephone conference
call. If the judge finds good cause for the party's failure to appear,
the judge shall vacate the default order and reset the case for a
hearing.
|
| Source Note: The provisions of this §159.213 adopted to be effective January 20, 2009, 34 TexReg 334; amended to be effective November 19, 2014, 39 TexReg 8958; amended to be effective January 1, 2017, 41 TexReg 9459; amended to be effective August 4, 2024, 49 TexReg 5758 |
