SECTION 159.213. Failure to Attend Hearing and Default

(a) Upon proof by DPS that notice of the hearing on the merits was sent to defendant's or, if defendant has legal representation, to defense counsel's last known address, and that notwithstanding such notice, defendant failed to appear, defendant's right to a hearing on the merits is waived. A rebuttable presumption that proper notice was given to defendant may be established by the introduction of a notice of hearing dated not less than 11 days prior to the hearing date and addressed to defendant's or defense counsel's last known address, as reflected on defendant's notice of suspension, request for hearing, driving record or similar documentation presented by DPS. Under those circumstances, the judge will proceed in defendant's absence and enter a default order upon DPS's motion.

(b) Within ten business days of the default, the defendant may file a written motion with SOAH and DPS requesting that the default order be vacated because the defendant had good cause for failing to appear. In the motion, the defendant must state whether DPS opposes the motion, and if DPS does oppose the motion, list dates and times for a hearing on the motion that are agreeable to both parties. Whether or not DPS opposes the motion, the judge may rule on the motion without setting a hearing or may set a hearing to consider the motion. A hearing on a motion to vacate a default order may be held by telephone conference call. If the judge finds good cause for the defendant's failure to appear, the judge shall vacate the default order and reset the case for a hearing.

Source Note: The provisions of this §159.213 adopted to be effective January 20, 2009, 34 TexReg 334; amended to be effective November 19, 2014, 39 TexReg 8958; amended to be effective January 1, 2017, 41 TexReg 9459