SECTION 101.22. Initiation of Proceedings and Examination of Pleadings

(a) Where applicable, upon the filing of a complaint with the appropriate office, the office shall determine whether the complaint complies with its prescribed form, if any, and whether a contested case should be initiated.

(1) If the office determines that the complaint does not substantially comply with its form, the office may return the complaint to the person who filed it, together with a statement of the office's reasons for returning the complaint.

(A) The person who filed a complaint shall thereafter have the right to correct and refile the complaint.

(B) The refiling of the complaint shall be within the time limit prescribed by the office.

(2) If the office determines that the complainant complies with its prescribed form but fails to state facts which, if proven, would be grounds for the secretary to take action, the complainant will be notified of the basis for such determination.

(A) The complainant shall be allowed to submit additional facts which, if proven, would be grounds for action by the secretary.

(B) The submission of the additional facts shall be within the time period specified by the office.

(C) If the person who filed the complaint does not submit additional facts within the time allowed, no further action shall be taken on the complaint and the file pertaining to the complaint shall be closed.

(3) If the agency determines that the legal rights, duties, or privileges of a party might be affected by action taken as a result of a complaint or the agency determines on its own volition that a contested case should be initiated, the agency shall give notice by certified mail to the party of facts and conduct alleged to warrant the intended action, and the party shall be given an opportunity as described in the notice to show compliance with all requirements of the law concerning the applicable rights, duties, or privileges.

(4) It is the intention of the Office of the Secretary of State to afford all parties an opportunity for a hearing in all contested cases.

(5) If revocation, suspension, probation, or other action concerning a registration, license, or commission is proposed, the agency shall give written notice to the affected party that the party must request, in writing, a formal hearing within 10 days of receipt of the notice. The notice shall state the basis for the proposed action. Receipt of the notice is presumed to occur on the 10th day after the notice is mailed to the last known address shown in the most recent filing with the appropriate office of the agency unless another date is reflected on a United States Postal Service return receipt.

(6) If no timely request for a hearing is received, the party is deemed to have waived the hearing and be in agreement with the allegations and proposed action.

(7) If the hearing is waived, action including, but not limited to, suspension, revocation, or probation of the registration, license, or commission, shall be taken by an order of the secretary of state.

(8) If a civil penalty is assessed pursuant to the Athlete Agents Act, Texas Civil Statutes, Article 8871, the procedures delineated in Section 9 of the referenced Athlete Agents Act supersedes those stated in paragraphs (1)-(7) of this subsection.

(9) If a formal hearing is requested, it shall be conducted in accordance with the provisions of the Administrative Procedure Act, other state statutes, agency rules applying to such hearings, and the rules of the State Office of Administrative Hearings.

(b) A formal hearing is initiated by the filing of a petition with the State Office of Administrative Hearings and a request for a setting of a hearing or an assignment of an administrative law judge in accordance with §155.7 of this title (relating to Jurisdiction). The formal hearing is conducted by the State Office of Administrative Hearings. The petition shall state the following:

(1) the name and address of the person initiating the proceeding or the name and address of the party's attorney or representative, if any;

(2) a statement of the legal authority and jurisdiction under which the contested case has been initiated;

(3) a reference to the particular sections of the statutes and rules involved;

(4) a statement of the matters asserted;

(5) a copy of the complaint, if any, upon which the proceeding is based; and

(6) the relief requested.

(c) Unless otherwise provided by law, where an office initiates a contested case on its own volition, the Office of Administrative Hearings shall assign a hearings examiner to hear the case and the office shall follow the notice procedures as outlined by §101.7 of this title (relating to Personal Service by the Agency).

(d) Upon the filing of any pleading, the hearing examiner may examine same and determine its sufficiency under these sections.

(1) If the hearings examiner finds that the pleading does not substantially comply with these sections, the hearings examiner may return it to the person who filed it, together with a statement of the reasons for returning the pleading.

(2) The person who filed such pleading shall thereafter have the right to correct and refile the pleading, provided that the refiling of such shall not be permitted to delay any contested case, unless the hearings examiner determines that the interest of justice so requires.

Source Note: The provisions of this §101.22 adopted to be effective April 7, 1986, 11 TexReg 1508; amended to be effective June 22, 1986, 12 TexReg 1866; amended to be effective June 22, 1992, 17 TexReg 4171.