| (a) The determination of the validity of a hearing
request is not, in itself, a contested case subject to the Texas Administrative
Procedure Act (APA). The commission will evaluate the hearing request
at the scheduled commission meeting, and may:
(1) determine that a hearing request does not meet
the requirements of this subchapter, and act on the application;
(2) determine that the hearing request does not meet
the requirements of this subchapter, and refer the application to
a public meeting to develop public comment before acting on the application;
(3) determine that a hearing request meets the requirements
of this subchapter, and direct the chief clerk to refer the application
to the State Office of Administrative Hearings (SOAH) for a hearing;
or
(4) direct the chief clerk to refer the hearing request
to SOAH. The referral may specify that SOAH should prepare a recommendation
on the sole question of whether the request meets the requirements
of this subchapter. The referral may also direct SOAH to proceed with
a hearing on the application if the judge finds that a hearing request
meets the requirements of this chapter. If the commission refers the
hearing request to SOAH it shall be processed as a contested case
under the APA.
(b) A request for a contested case hearing shall be
granted if the request is:
(1) made by the applicant or the executive director;
or
(2) made by an affected person if the request:
(A) complies with the requirements of §55.251
of this title (relating to Requests for Contested Case Hearing, Public
Comment);
(B) is timely filed with the chief clerk; and
(C) is pursuant to a right to hearing authorized by
law.
(c) The commission may refer an application to SOAH
if there is no hearing request complying with this subchapter, if
the commission determines that a hearing would be in the public interest.
(d) A decision on a hearing request is an interlocutory
decision on the validity of the request and is not binding on the
issue of designation of parties under §80.109 of this title (relating
to Designation of Parties). A person whose hearing request is denied
may still seek to be admitted as a party under §80.109 of this
title if any hearing request is granted on an application. Failure
to seek party status shall be deemed a withdrawal of a person's hearing
request.
(e) If all requests for contested case hearing are
denied, §80.272 of this title (relating to Motion for Rehearing)
applies. A motion for rehearing in such a case must be filed not later
than 25 days after the date that the commission's final decision or
order is signed, unless the time for filing the motion for rehearing
has been extended under Texas Government Code, §2001.142 and §80.276
of this title (relating to Request for Extension to File Motion for
Rehearing), by agreement under Texas Government Code, §2001.147,
or by the commission's written order issued pursuant to Texas Government
Code, §2001.146(e). If the motion is denied under §80.272
and §80.273 of this title (relating to Motion for Rehearing and
Decision Final and Appealable), the commission's decision is final
and appealable under Texas Water Code, §5.351, Texas Health and
Safety Code, §401.341, or under the APA.
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