|(a) Formal administrative hearings in contested cases shall
be conducted in accordance with the APA and SOAH rules. Jurisdiction over
the case is acquired by SOAH when the staff or respondent files a Request
to Docket Case Form accompanied by legible copies of all pertinent documents,
including but not limited to the complaint, petition, application, or other
document describing the agency action giving rise to a contested case.
(b) When a case has been docketed before SOAH, Board staff
or respondent shall provide a notice of hearing to all parties in accordance
with §2001.052, Texas Government Code, and applicable SOAH rules.
(c) In disciplinary cases, the respondent shall enter an appearance
by filing a written answer or other responsive pleading with SOAH, with a
copy to staff, within 20 days of the date on which the notice of hearing is
served to the respondent.
(d) For purposes of this section, an entry of an appearance
shall mean the filing of a written answer or other responsive pleading.
(e) The failure of the respondent to timely enter an appearance
as provided in this section shall entitle the staff to a continuance at the
time of the hearing in the contested case for such reasonable period of time
as determined by the judge.
(f) The notice of hearing provided to a respondent for a contested
case shall include the following language in capital letters in 12-point bold
face type: FAILURE TO ENTER AN APPEARANCE BY FILING A WRITTEN ANSWER OR OTHER
RESPONSIVE PLEADING TO THE FORMAL CHARGES WITHIN 20 DAYS OF THE DATE THIS
NOTICE WAS MAILED, SHALL ENTITLE THE STAFF TO A CONTINUANCE AT THE TIME OF
(g) If a respondent fails to appear in person or by attorney
on the day and at the time set for hearing in a contested case, regardless
of whether an appearance has been entered, the judge, pursuant to SOAH's rules,
shall, upon adequate proof that proper notice under the APA and SOAH rules
was served upon the defaulting party, enter a default judgment in the matter
adverse to the respondent. Such notice shall have included in 12-point, bold
faced type, the fact that upon failure of the party to appear at the hearing,
the factual allegations in the notice will be deemed admitted as true and
the relief sought in the proposed recommendation by the staff shall be granted
(h) Any default judgment granted under this section will be
entered on the basis of the factual allegations in the formal charges contained
in the notice of hearing, and upon proof of proper notice to the respondent.
For purposes of this section, proper notice means notice sufficient to meet
the provisions of the Texas Government Code §§2001.051, 2001.052
and 2001.054, as well as §213.10 of this title (relating to Notice and
Service). Such notice of hearing also shall include the following language
in capital letters in 12-point boldface type: FAILURE TO APPEAR AT THE HEARING
IN PERSON OR BY LEGAL REPRESENTATIVE, REGARDLESS OF WHETHER AN APPEARANCE
HAS BEEN ENTERED, WILL RESULT IN THE ALLEGATIONS CONTAINED IN THE FORMAL CHARGES
BEING ADMITTED AS TRUE AND THE PROPOSED RECOMMENDATION OF STAFF SHALL BE GRANTED
(i) A motion to vacate a default judgment rendered by the judge
must be filed within 10 days of service of notice of the default judgment.
(1) The motion to vacate the default judgment shall be granted
if movant proves by the preponderance of the evidence that the failure to
attend the hearing was not intentional or the result of conscious indifference,
but due to accident or mistake, provided that respondent has a meritorious
defense to the factual allegations contained in the formal charges and the
granting thereof will occasion no delay or otherwise work an injury to the
(2) If the motion to vacate the default judgment is granted,
it shall be the responsibility of the parties to either settle the matter
informally or to request a rehearing on the merits. Whenever possible, the
rehearing of the case shall occur with the judge that heard the default matter.
(j) Because of the often voluminous nature of the records properly
received into evidence by the judge, the party introducing such documentary
evidence may paginate each such exhibit or flag pertinent pages in each such
exhibit in order to expedite the hearing and the decision-making process.
(k) The schedule of sanctions set out in the NPA is adopted
by the Board, and the judge shall use such sanctions as well as any sanctions
adopted by the Board by rule.
(l) Within a reasonable time after the conclusion of the hearing,
the judge shall prepare and serve on the parties a proposal for decision that
includes the judge's findings of fact and conclusions of law and a proposed
order recommending a sanction to be imposed, if any.
(m) Each hearing may be recorded by a court reporter in accordance
with the APA and SOAH rules. The cost of the transcription of the statement
of facts shall be borne by the party requesting the transcript and said request
shall be sent directly to the court reporter and the requesting party shall
notify the other party in writing of the request.
(n) A party who appeals a final decision of the Board shall
pay all of the costs of preparation of the original and any certified copy
of the record of the proceeding that is required to be transmitted to the
(1) The record in a contested case shall consist of the following:
(A) all pleadings, motions, intermediate rulings;
(B) all evidence received or considered by the judge;
(C) a statement of the matters officially noticed;
(D) questions and offers of proof, objections, and rulings
(E) proposed findings and exceptions;
(F) any decision, opinion, or report by the judge presiding
at the hearing;
(G) all staff correspondence submitted to the judge in connection
with his or her consideration of the case; and
(H) the transcribed statement of facts (Q & A testimony)
from the hearing unless the parties have stipulated to all or part of the
statement of facts.
(2) Calculation of costs for preparation of the record shall
be governed by the same procedure utilized by the Board in preparing documents
responsive to open records requests pursuant to the Public Information Act.
These costs shall include, but not be limited to, the cost of research, document
retrieval, copying, and labor.