SECTION 357.493. Conduct of Hearing

(a) Unless otherwise required by law, all contested case proceedings are open to the public, except the judge may take necessary steps to limit attendance due to any physical limitations of the hearing facility.

(b) The referring agency has the burden of proof unless otherwise specified by statute or rule. The party with the burden of proof presents evidence first, unless the judge orders otherwise. The burden of proof is by a preponderance of the evidence unless otherwise provided by statute or rule.

(c) The referring agency is normally responsible for providing reasonable accommodation for an individual with limited English proficiency or for disclosed disabilities. The party requesting reasonable accommodation shall do so in writing to the judge at least seven days before the hearing or setting. For good cause shown, the judge may consider a request filed after this deadline. The judge determines when an agency shall provide a reasonable accommodation.

(d) The judge may issue an order permitting a party or witness to appear by telephone. The party seeking to participate by telephone must file a motion no later than seven days before the hearing. The motion must state the reason for the request and contain the telephone number where the party or witness can be reached. The non-moving party must file a response to the motion no later than two days after receipt of the motion. Based on a consideration of good cause, the judge issues an order granting or denying the request no later than two days before the hearing.

(e) The judge may issue an order permitting a party or witness to appear by video conference. The party seeking to participate by video conference must file a motion no later than 14 days before the hearing or setting. The motion must state the reason for the request and the city of residence of the party or witness. The non-moving party must file a response to the motion no later than two days after receipt of the motion. In deciding whether to grant the request, the judge may consider any relevant matter including the availability of video conferencing facilities or equipment.

(f) When the judge grants a motion under subsection (d) or (e) of this section, a party must file with the judge and serve the other party with all documentary evidence to be offered at the hearing or setting, at least three days before the hearing or setting. The judge may amend this filing deadline by written order.

(g) When the judge grants a motion under subsection (d) or (e) of this section, the judge may rule that any of the following is a failure to appear and grounds for default, if it occurs for more than ten minutes after the scheduled hearing time:

(1) failure to answer the telephone or video conference line;

(2) failure to free the telephone or video conference line for the proceeding; or

(3) failure to be ready to proceed with the hearing or pre-hearing conference as scheduled.

(h) Participants and observers shall conduct themselves with dignity, shall show courtesy and respect for one another and for the judge, and shall follow any additional guidelines of decorum prescribed by the judge. The judge may take appropriate action to maintain and enforce proper conduct and decorum, including:

(1) issuing a warning;

(2) excluding a person from the proceeding; or

(3) recessing the proceeding.

(i) The judge shall make a record of all proceedings, except the judge may waive the making of a record of a pre-hearing conference and may reflect the actions taken in a written order.

(j) On the written request by a party, or at the request of the judge, a court reporter shall prepare a transcript of all or part of the proceedings. The party requesting the transcript shall pay the costs unless the parties agree to share the costs. When only the judge requests a transcript, the referring agency shall pay the costs unless the parties agree to share the costs.

Source Note: The provisions of this §357.493 adopted to be effective June 20, 2007, 32 TexReg 3544