Texas Register

RULE §9.4314Administrative Law Judge's Powers
ISSUE 01/08/2021
ACTION Proposed
Preamble Texas Admin Code Rule

(a)The ALJ shall conduct a hearing on a protest of the comptroller's findings under Government Code, §403.302 (g) or (h) in a manner ensuring fairness, the reliability of evidence, and the timely completion of the hearing. The ALJ shall have the authority necessary to receive and consider evidence as provided under this subchapter and propose decisions only on the grounds for objection identified and referred by the comptroller.

(b)The comptroller has the burden to prove the accuracy of the comptroller's findings under Government Code, §403.302(g) or (h).

(c)The ALJ's authority includes, but is not limited to, the following:

  (1)rule on motions and the admissibility of evidence;

  (2)conduct oral hearings in an orderly manner and expel from any proceeding any individuals who, after an appropriate warning, fail to comport themselves in a manner befitting the proceeding and continue with the proceeding, hear evidence, and render a decision on the protest;

  (3)administer oaths to all persons presenting testimony;

  (4)examine witnesses and comment on the evidence;

  (5)ensure that evidence, argument, and testimony are introduced and presented expeditiously;

  (6)refuse to hear arguments that are repetitious, not confined to grounds for objection identified and submitted by the comptroller to SOAH pursuant to this subchapter, or not related to the evidence;

  (7)accept and record any waiver of any right prescribed in this subchapter;

  (8)limit each oral hearing to two hours for presentation of evidence and argument or extend the two-hour time limit in the interest of a full and fair hearing; and

  (9)exercise any other powers necessary or convenient to carry out the ALJ's responsibilities and to ensure timely certification of changes in preliminary findings to the commissioner of education.

(d)The ALJ shall take official notice of the written policies and procedures of the comptroller pertaining to the property value study and may take official notice of any statutes, codes and administrative rules of the State of Texas.

(e)The ALJ may entertain motions for dismissal at any time as requested by the comptroller. Grounds for dismissal shall include, but are not limited to, the following:

  (1)failure to prosecute;

  (2)unnecessary duplication of proceedings or res judicata;

  (3)withdrawal of protest;

  (4)moot questions or obsolete petition; or

  (5)the comptroller has certified amended preliminary findings pursuant to this subchapter.

(f)The ALJ may grant a request to postpone an oral protest hearing if good cause is shown and doing so would not prevent timely certification of changes in preliminary findings to the commissioner of education. A request to postpone must be in writing, show good cause for the postponement, and be delivered five calendar days before the date the protest hearing is scheduled to begin. Good cause does not include a claim that the time periods established in Government Code, §403.303(a) or in this subchapter are insufficient. If requested in writing by the petitioner and for good cause shown, the ALJ may waive the requirement that the request for postponement be made five calendar days in advance of the deadline.

(g)Except as otherwise provided in this subchapter, the ALJ assigned to a protest may not communicate outside of the protest hearing, directly or indirectly, with any agency, person, petitioner, petitioner's witness or petitioner's agent regarding any issue of fact or law relating to the protest unless all parties to the protest have notice and opportunity to participate.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on December 21, 2020


Victoria North

General Counsel for Fiscal and Agency Affairs

Comptroller of Public Accounts

Earliest possible date of adoption: February 7, 2021

For further information, please call: (512) 475-2220

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