SECTION 107.26. Failure to Attend Hearing and Default

(a) If a party who does not have the burden of proof fails to appear at a contested case hearing at the State Office of Administrative Hearings (SOAH), the administrative law judge shall announce the default, recess the hearing, and issue a proposal for decision. Pursuant to 1 TAC §155.501(f), the defaulting party may file a motion with SOAH to set aside the default and reopen the record, prior to the judge's issuance of the proposal for decision or dispositive order.

(b) If the administrative law judge does not issue a default proposal for decision and instead, issues an order dismissing the case from the SOAH docket and returning the case to the agency for informal disposition on a default basis in accordance with §2001.056 of the Texas Government Code, the board may issue a final order deeming that Respondent has:

(1) admitted all the allegations in the notice of hearing and formal complaint;

(2) waived the opportunity to show compliance with the law;

(3) waived the opportunity for a hearing on the allegations in the notice of hearing and formal complaint; and

(4) waived objection to the recommended sanction in the notice of hearing and formal complaint.

(c) If a party who does have the burden of proof fails to appear at a contested case hearing at SOAH, the administrative law judge shall dismiss the case for want of prosecution, any relevant application will be withdrawn, and the board may not consider a subsequent petition from the party until the first anniversary of the date of dismissal of the case.

(d) The party seeking affirmative relief bears the burden of proof at a contested case hearing. An unlicensed individual contesting the denial of an application or the imposition of a cease and desist order shall bear the burden of proof at a contested case hearing, irrespective of which party files the notice of hearing with SOAH.

Source Note: The provisions of this §107.26 adopted to be effective September 30, 2012, 37 TexReg 7484; amended to be effective March 20, 2016, 41 TexReg 2165