(a)The timely filing of a motion for rehearing is
a prerequisite to appeal. [A decision is final, in the absence
of a timely motion for rehearing, on the expiration of the period
for filing a motion for rehearing. A decision is final and appealable
on the date the order overrules a motion for rehearing, or on the
date the motion for rehearing is overruled by operation of law.]
(b)Motions for rehearing are controlled by the
APA [Texas Government Code], §§2001.145
- 2001.147 and this section.
(c)A motion for rehearing shall set forth the particular
finding of fact, conclusion of law, ruling, or other action which
the complaining party asserts caused substantial injustice to the
party and was in error, such as violation of a constitutional or statutory
provision, lack of authority, unlawful procedure, lack of substantial
evidence, abuse of discretion, other error of law, or other good cause
specifically described in the motion. In the absence of specific grounds
in the motion, the Commission will take no action and [shall
presume that] the motion will [should]
be overruled by operation of law.
(d)The Commission delegates authority
to hear and rule on motions for rehearing to the Commission's Enforcement
Committee, consisting of three Commission members appointed by the
Commission chair.
(e)[(d)] Any party may request
oral arguments before the Enforcement Committee [Commission
] prior to the final disposition of the motion for rehearing.
If the Enforcement Committee grants a request for oral argument, oral [
Oral] arguments will be conducted in accordance with paragraphs
(1) - (5) of this subsection.
(1)The chair [chairperson] of
the Enforcement Committee or the member designated by the chair
[chairperson] to preside (the presiding member)
shall announce the case. Upon the request of any party, the presiding
member may conduct a prehearing conference with the parties and their
attorneys of record. The presiding member may announce reasonable
time limits for any oral arguments to be presented by the parties.
(2)The hearing on the motion shall be limited to a
consideration of the grounds set forth in the motion. Testimony by
affidavit or documentary evidence, such as excerpts of the record
before the presiding officer, may be offered in support of, or in
opposition to, the motion; provided, however, a party offering affidavit
testimony or documentary evidence must provide the other party with
copies of the affidavits or documents at the time the motion is filed.
New evidence may not be presented on the substance of the case unless
the party submitting the evidenced can establish that the new evidence
was not reasonably available at the time of the original hearing,
or the party offering the evidence was misled by a party regarding
the necessity for offering the evidence at the original hearing.
(3)In presenting oral arguments, the party filing
the motion will have the burden of proof and persuasion and shall
open and close. The party responding to the motion may offer rebuttal
arguments. Parties may request an opportunity for additional rebuttal,
subject to the discretion of the presiding member.
(4)After being recognized by the presiding member,
the members of the Enforcement Committee [Commission]
may ask questions of the parties. If a party is represented by counsel,
the questions must be directed to the party's attorney. Questions
must be limited to the grounds asserted for the motion to be granted
and to the arguments made by the parties.
(5)Upon the conclusion of oral arguments, questions
by the members of the Enforcement Committee [Commission],
and any discussion by the members [member] of
the Enforcement Committee [Commission], the
presiding member shall call for a vote on the motion. A member of
the Enforcement Committee [Commission] need
not make a separate motion or second a motion filed by a party. The
presiding member may vote on the motion. A motion may be granted only
if a majority of the Enforcement Committee members are present
and voting vote in favor of the motion. In the event of a tie vote,
the presiding member shall announce that the motion is overruled.
(f)[(e)] A petition for judicial
review must be filed in a District Court of Travis County Texas [within
30 days after the order is final and appealable,] as provided
by the APA [Texas Government Code, Title 10, Subtitle
A, Chapter 2001]. A party filing a petition for judicial review
must also comply with the requirements of Texas Occupations Code, §1101.707.
(g)[(f)] A party who appeals
a final decision in a contested case must pay all costs for the preparation
of the original or a certified copy of the record of the agency proceeding
that is required to be transmitted to the reviewing court.
(h)[(g)] If, after judicial
review, the administrative penalty is reduced or not assessed, the Executive
Director [Administrator] shall remit to the person
charged the appropriate amount, plus accrued interest if the administrative
penalty has been paid, or shall execute a release of the bond if a
supersedeas bond has been posted. The accrued interest on amounts
remitted by the Executive Director [Administrator]
under this subsection shall be paid at a rate equal to the rate charged
on loans to depository institutions by the New York Federal Reserve
Bank, and shall be paid for the period beginning on the date that
the assessed administrative penalty is paid to the Commission and
ending on the date the administrative penalty is remitted.
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 August 20, 2015
TRD-201503254 Kerri Lewis
General Counsel
Texas Real Estate Commission
Earliest possible date of adoption: October 4, 2015
For further information, please call: (512) 936-3092
|