SECTION 153.1239. Disposition Prior to Hearing; Default

(a) This subchapter and Texas Administrative Code (TAC), Title 1, Part 7, Chapter 155 (relating to Rules of Procedure) shall govern disposition prior to hearing, default, and attendant relief.

(b) The commissioner of education may issue and sign orders resolving a case prior to the issuance of a proposal for decision by the presiding administrative law judge (ALJ) at the State Office of Administrative Hearings (SOAH) by waiver, stipulation, compromise, agreed settlement, consent order, agreed statement of facts, or any other informal or alternative resolution agreed to by the parties and not precluded by law.

(c) The commissioner or the SOAH may dispose of a case through dismissal, partial or final summary disposition, or any other procedure authorized by SOAH rules of procedure prior to a contested case hearing on the merits on the following grounds: unnecessary duplication of proceedings; res judicata; withdrawal; mootness; lack of jurisdiction; failure of a party requesting relief to timely file or file in proper form a pleading that would support an order or decision in that party's favor; failure to comply with an applicable order, deadline, rule, or other requirement issued by the presiding ALJ; failure to state a claim for which relief can be granted; or failure to prosecute.

(d) A party's failure to appear in person or by authorized representative on the day and at the time set for hearing shall constitute a default in a contested case, and the commissioner may enter a default judgment, as authorized by the Texas Government Code, §2001.056, or 1 TAC §155.501 (relating to Default Proceedings).

(1) If the case is dismissed and remanded to the commissioner by the SOAH after a party failed to appear in person or by authorized representative on the day and at the time set for hearing in a contested case, the Texas Education Agency (TEA) staff attorney shall present to the commissioner a motion for default.

(2) Prior to issuance of a default decision or order, a party may contest the issuance of a default judgment by written notice filed with TEA staff showing good cause for failure to appear at the contested case hearing.

(3) After consideration of the petition and the motion for default, the commissioner may then issue a default order deeming the allegations in the petition as true.

Source Note: The provisions of this §153.1239 adopted to be effective December 31, 2019, 44 TexReg 8307