| (a) Purpose. The purpose of this section is to provide
procedures for contested case hearings. This section does not apply
to matters such as appeals to the Board of staff decisions or waivers,
and this section does not in itself create any right to a contested
case hearing, but merely provides the process to be used for contested
case hearings that are otherwise expressly provided for by law or
rule.
(b) SOAH Designation. The Governing Board (the Board)
of the Texas Department of Housing and Community Affairs (the Department)
designates the State Office of Administrative Hearings (SOAH) to hold
all contested case hearings on the Board's behalf.
(c) Initiation of Hearing.
(1) Upon request from the Board or upon receipt of
a pleading or other document that is intended to initiate a contested
case proceeding, the Department shall determine if a contested case
hearing is indicated under the relevant statutory provisions and rules.
If so, staff will mark the file as a pending proceeding and refer
the matter to SOAH for hearing generally within 45 calendar days,
or such other lesser time as an applicable state or federal statute,
rule, or regulation may require. The Department will notify the opposing
party of any delay.
(2) SOAH shall acquire jurisdiction over a case when
the Department completes and files a Request to Docket Case form or
other form acceptable to SOAH, together with the notice of report
to the Board required under Tex. Gov't. Code §2306.043 or other
pertinent documents giving rise to the case. Once SOAH acquires jurisdiction,
all subsequent documents created, sent, or received in connection
with the proceeding that SOAH requires to be filed with it are to
be filed with SOAH, with appropriate service upon the opposing party
in accordance with this section and the rules of SOAH.
(3) Except upon a showing of good cause or as an applicable
statute or federal regulation may require, all contested case hearings
in which the Department is a party shall be held at the location so
determined by SOAH.
(4) Nothing in this subchapter shall in any way limit,
alter, or abridge the ability of the Department to enter into mediation
or alternative dispute resolution at any time prior to or after the
holding of the administrative hearing but prior to the adoption by
the Board of a final order.
(d) Service of Notice of Hearing, Pleadings and Other
Documents on Parties.
(1) Service of a notice of hearing or of pleadings
or other documents shall be made electronically using the EFileTexas
system (found at efiletexas.gov). If EFileTexas is not available to
a party, hand delivery, courier-receipted delivery, regular first
class mail or certified mail to the party's last known address as
shown on the Department's records, in accordance with §1.22 of
this Title (relating to Providing Contact Information to the Department)
shall be used.
(2) Service of pleadings and other documents shall
be made in any manner provided for in SOAH rules.
(e) Proposal for Decision.
(1) After the conclusion of a hearing, the Administrative
Law Judge (ALJ) shall prepare and serve on the parties a proposal
for decision that includes the ALJ's findings of fact and conclusions
of law, as modified by the ALJ's addressing of any exceptions and
replies to exceptions timely filed with the ALJ in accordance with
Tex. Gov't. Code §2001.062 and SOAH rules. The Executive Director
shall place the proposal for decision and a proposed final order on
the Board's agenda for discussion and possible action at a subsequent
meeting of the Board.
(2) At a meeting of the Board where the proposed final
order may be adopted, parties may provide testimony based on the record
only, for changes to the proposal for decision or the proposed final
order. No new evidence shall be submitted at the Board meeting. The
Board may, on its own motion, remand to SOAH for any additional fact
finding it determines is necessary, or, the Board may change a finding
of fact or conclusion of law made by the ALJ, but only for reasons
stated in Tex. Gov't. Code §2001.058(e). The Board may adopt
a final order if it finds that the findings of fact and conclusions
of law are supported by the evidence. Motions for rehearing may be
filed and served in accordance with the Tex. Gov't. Code Chapter 2001
and the rules of SOAH.
(f) Disposition of Contested Cases on a Default Basis.
(1) In contested cases where the party not bearing
the burden of proof at the hearing fails to appear, the ALJ may issue
an order finding that adequate notice has been given, deeming factual
allegations in the notice of hearing admitted, if appropriate, conditionally
dismissing the case from the SOAH docket, and conditionally remanding
the case to TDHCA for disposition on a default basis. Pursuant to
SOAH rules, a party has 15 calendar days after the issuance of a conditional
order of dismissal and remand to file with SOAH a motion to set aside
the order of dismissal and remand. On the sixteenth day after issuance,
if no motion to set aside has been timely filed or if such a motion
to set aside is not granted within the time limits provided for in
SOAH's rules, the conditional order of dismissal and remand becomes
final.
(2) When the order of dismissal and remand is final,
the Executive Director shall prepare a proposed order for the Board's
action containing findings of fact, as set forth in the notice of
hearing, conclusions of law, and granting the relief requested by
staff. The matter shall be placed on the Board's agenda for discussion
and possible action at a subsequent meeting. Although public testimony
is allowed, argument and evidence on the merits will not be considered
at the Board meeting. Motions for rehearing shall be filed and served
in accordance with Tex. Gov't. Code Chapter 2001 and the rules of
SOAH.
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