SECTION 357.495. Default and dismissal

(a) Default. The judge may proceed on a default basis if a party without the burden of proof fails to appear. The factual allegations listed in the notice of hearing may be deemed admitted. The party with the burden of proof must show that:

(1) proper notice under §357.489 of this title (relating to Notice of Hearing) was provided to the defaulting party; or

(2) a statute or rule authorizes service of the notice by sending it to the party's last known address as shown by the agency's records, and there is credible evidence that the notice was sent by first class mail to that address.

(b) Reopening. A party may file a motion to set aside a default and reopen the record no later than ten days after the hearing, if a final order has not been issued. The judge may grant the motion for good cause shown.

(c) Dismissal. In response to a party's motion or after a judge notifies the parties of an intent to dismiss a case, the judge may dismiss a case, or a portion of the case, for:

(1) lack of jurisdiction;

(2) failure of a party to appear within ten minutes of the scheduled hearing time;

(3) failure by a party to prosecute the case in accordance with a requirement of statute, rule, or order of the judge;

(4) the cause of action being moot;

(5) failure to state a claim for which relief can be granted;

(6) failure to request the hearing in a timely manner according to §357.484 of this title (Relating to Request for Hearing); or

(7) unnecessary duplication of proceedings.

Source Note: The provisions of this §357.495 adopted to be effective June 20, 2007, 32 TexReg 3544