SECTION 1.26. Agency Determination Regarding Contested Case Status

All petitions for contested case status shall be reviewed by the Board's General Counsel.

(1) If the General Counsel finds that the prerequisites found herein have been met, he or she shall notify the petitioner that he or she has established the right to a contested case.

(2) If the petition concerns an alleged breach of contract, the General Counsel, after consulting with appropriate officers of the agency and with the Commissioner, shall determine whether a sufficient basis exists for a counterclaim, and if it is determined that it is in the best interest of the agency to file a counterclaim, shall assist in drafting the notice of counterclaim, which shall comply with the deadlines, content, and notice requirements found in §1.42 of this title (relating to Board Counterclaims).

(3) If the General Counsel finds that prerequisites have not been met, he or she shall refer the petition to the Assistant Commissioner whose division has jurisdiction over the issue or claim. The Assistant Commissioner shall either seek clarification from the petitioner to enable the Assistant Commissioner to conclude that the petition is substantially complete, or shall notify the petitioner in writing that the petition fails to state properly a claim that entitles the petitioner a right to a hearing, and the manner in which it failed. The petitioner shall perfect the pleading no later than the later of the following:

(A) the deadline specified in §1.23 of this title (relating to Deadlines for Filing a Petition for Contested Case Status); or

(B) 15 days after the receipt of notice that the pleading fails to state properly a claim that entitles the petitioner a right to a hearing.

Source Note: The provisions of this §1.26 adopted to be effective February 26, 2004, 29 TexReg 1658