SECTION 157.1054. Discovery

(a) Permissible forms of discovery in a de novo hearing are:

(1) oral or written deposition governed by Texas Government Code, §§2001.094-2001.103;

(2) written interrogatories to a party governed by Texas Rule of Civil Procedure 197;

(3) requests of a party for admission of facts and the genuineness or identity of documents or things governed by Texas Rule of Civil Procedure 198;

(4) requests and motions for production, examination, and copying of documents or other tangible materials governed by Texas Government Code, §2001.091;

(5) requests and motions for entry upon and examination of real property governed by Texas Government Code, §2001.091;

(6) discovery from parties regarding the identity of witnesses or potential parties and expert reports governed by Texas Government Code, §2001.092, and discovery from parties regarding copies of previous statements governed by Texas Government Code, §2001.093; and

(7) requests for disclosure governed by Texas Rule of Civil Procedure 194.

(b) Commissions to take depositions and subpoenas to secure the attendance of a witness at hearing may only be issued by an administrative law judge. To obtain a commission or a subpoena, a party must file a motion which specifically articulates grounds constituting good cause for the issuance of the subpoena and must pay all applicable fees.

(c) Any motion to compel discovery shall contain a certificate by the party filing the motion that efforts to resolve the discovery dispute without the necessity of agency intervention have been attempted and failed.

(d) Requirements concerning discovery sanctions include the following.

(1) Motions for sanctions or order compelling discovery. Upon reasonable notice to all party representatives and affected persons, a party may apply to the administrative law judge for an order compelling discovery. A party may not request sanctions under paragraph (3) of this subsection without having first obtained an order compelling discovery.

(2) Enforcement in district court. If a person fails to comply with a subpoena or a commission for deposition issued by an administrative law judge, the agency or party requesting the subpoena or commission for deposition may seek its enforcement in district court in any manner provided by law.

(3) Failure to comply with order or with discovery request. If a party; or an officer, director, or managing agency of a party; or a person designated to testify on behalf of a party fails to comply with proper discovery requests or to obey an order compelling discovery, an administrative law judge may, after opportunity for hearing, issue orders in response to the failure, including any of the following orders:

(A) preventing the disobedient party from further discovery of any kind, or of a particular kind;

(B) deeming any facts pertaining to the order, or any other facts, to be established, as claimed by the moving party;

(C) disallowing the disobedient party from supporting or opposing designated claims or defenses, or prohibiting the party from introducing designated matters in evidence; and

(D) striking out pleadings or parts of pleadings, staying further action until the order is obeyed; dismissing the hearing with or without prejudice; or rendering a judgment against the disobedient party.

(4) Abuse of discovery process. The administrative law judge may impose any of the sanctions listed in paragraph (3) of this subsection on a party who abuses the discovery process in seeking or resisting discovery or who files a request, response, or answer that is frivolous, oppressive, or made for the purpose of delay.

(5) Failure to respond to or supplement discovery. A party who fails to respond to or supplement a discovery request or refuses to supplement a response to a discovery request may not present evidence that the party was under a duty to provide in a response or supplemental response, and may not offer the testimony of an expert witness or of any other person having knowledge of the discoverable matter, unless the administrative law judge finds good cause to permit the evidence despite the noncompliance. The burden of establishing good cause is upon the party offering the evidence, and good cause must be shown in the record.

(6) Impermissible communications. Unless permitted by law, party representatives shall not communicate with the administrative law judge or the commissioner without the knowledge of all other parties. The administrative law judge or commissioner may impose any of the preceding sanctions for impermissible communication.

(7) Record of basis for sanction. The administrative law judge shall state the specific basis for any sanction in the record or in a written order.

Source Note: The provisions of this §157.1054 adopted to be effective April 7, 1993, 18 TexReg 1928; amended to be effective July 20, 2004, 29 TexReg 6887