Texas Register, Volume 30, Number 43, Pages 6973-7094, October 28, 2005 Page: 6,997
6973-7094 p. ; 28 cm.View a full description of this periodical.
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Charles Horton
Executive Director
Texas State Board of Social Worker Examiners
Earliest possible date of adoption: November 27, 2005
For further information, please call: (512) 458-7236
SUBCHAPTER G. FORMAL HEARINGS
22 TAC 781.701 - 781.704
The proposed amendment and new sections are authorized
by Occupations Code, 505.201, which authorizes the board
to adopt rules necessary to perform the board's duties, and to
establish standards of conduct and ethics for license holders;
by Occupations Code, 505.203, which authorizes the board to
set fees; and by Occupations Code, 505.404, which requires
the board to establish mandatory continuing education require-
ments for license holders.
The proposed amendment and new sections affect Occupations
Code, Chapter 505.
781.701. Purpose.
These rules cover the hearing procedures and practices that are avail-
able to persons or parties who request formal hearings from the board.
The intended effect of these rules is to supplement the contested case
provisions of the Texas Government Code, Chapter 2001, Administra-
tive Procedure Act (APA), the hearing procedures of the State Office
of Administrative Hearings (Texas Government Code, Chapter 2003,
and Rules of Procedure, 1 Texas Administrative Code, Chapter 155),
and to make the public aware of these procedures and practices. [This
&ubeh.ptcovers the formal hearing proedures and practices that
be used by the beard in handling ,naas & e probations d
revoeeations of a license and implements the contested ease provisions
of the APA.]
781.702. Notice.
(a) For purposes contested case proceedings before the State
Office of Administrative Hearings, proper notice means notice suffi-
cient to meet the provisions of the Texas Government Code, Chapter
2001 and the State Office of Administrative Hearings Rules of Proce-
dure, 1 Texas Administrative Code, Chapter 155.
(b) For purposes of informal conferences, proper notice shall
include the name and style of the case, the date, time, and place of
the informal conference, and a short statement of the purpose of the
conference.
(c) The following statement shall be attached to the notice of
hearing or notice of informal conference, in bold letters of at least 10
point type:
Figure: 22 TAC 781.702(c)
781.703. Default.
(a) For purposes of this section, default means the failure of
the respondent to appear in person or by legal representative on the
day and at the time set for hearing in a contested case or informal
conference, or the failure to appear by telephone, in accordance with
the notice of hearing or notice of informal conference.
(b) Remedies available upon default in a contested case before
the State Office of Administrative Hearings (SOAH). The Administra-
tive Law Judge (ALJ) shall proceed in the party's absence and such
failure to appear shall entitle the department to seek informal disposi-
tion as provided by the Texas Government Code, Chapter 2001. TheALJ shall grant any motion by the department to remove the case from
the contested hearing docket and allow for informal disposition by the
board.
(c) Remedies available upon default in an informal confer-
ence. The board may proceed to make such informal disposition of
the case as it deems proper, as if no request for hearing had been re-
ceived.
(d) The board may enter a default judgment by issuing an or-
der against the defaulting party in which the factual allegations in the
notice of violation or notice of hearing are deemed admitted as true
without the requirement of submitting additional proof, upon the offer
of proof that proper notice was provided to the defaulting party.
(e) Motion to set aside and reopen. A timely motion by the
respondent to set aside the default order and reopen the record may
be granted if the respondent establishes that the failure to attend the
hearing was neither intentional nor the result of conscious indifference,
and that such failure was due to mistake, accident, or circumstances
beyond the respondent's control.
(1) A motion to set aside the default order and reopen the
record shall be filed with the board prior to the time that the order
of the board becomes final pursuant to the provisions of the Texas
Government Code.
(2) A motion to set aside the default order and reopen the
record is not a motion for rehearing and is not to be considered a
substitute for a motion for rehearing. The filing of a motion to set
aside the default order and reopen has no effect on either the statutory
time periods for the filing of a motion for rehearing or on the time
period for ruling on a motion for rehearing, as provided in the Texas
Government Code.
(f) This subsection also applies to cases where service of the
notice of hearing on a defaulting party is shown only by proof that
the notice was sent to the party's last known address as shown on
the department's records, with no showing of actual receipt by the
defaulting party or the defaulting party's agent. In that situation, the
default procedures described in subsection (c) of this section may be
used if there is credible evidence that the notice of hearing was sent by
certified or registered mail, return receipt requested, to the defaulting
party's last known address.
781.704. Action after Hearing.
(a) Reopening of hearing for new evidence.
(1) The board may reopen a hearing where new evidence
is offered which was unobtainable or unavailable at the time of the
hearing.
(2) The department shall reopen a hearing to include such
new evidence as part of the record if the board deems such evidence
necessary for a proper and fair determination of the case. The reopened
hearing will be limited to only such new evidence.
(3) Notice of any reopened hearing shall be provided to
all previously designated parties, by certified mail, return receipt re-
quested.
(b) Final orders or decisions.
(1) The final order or decision of the department will be
rendered by the board or its designee.
(2) All final orders or decisions shall be in writing and shall
set forth the findings of fact and conclusions required by law, either
in the body of the order, by attachment, or by reference to an ALJ's
proposal for decision.PROPOSED RULES October 28, 2005 30 TexReg 6997
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Texas. Secretary of State. Texas Register, Volume 30, Number 43, Pages 6973-7094, October 28, 2005, periodical, October 28, 2005; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth97316/m1/24/: accessed July 16, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.