SECTION 187.27. Written Answers in SOAH Proceedings and Default Orders

(a) Written Answers in SOAH Proceedings. As authorized by SOAH rules, a respondent is required to file a written answer to the Complaint within 20 days after the date that service of the Complaint is complete, as provided in §187.26(c) of this title (relating to Service in SOAH Proceedings), the respondent shall file a written answer with the State Office of Administrative Hearings and with the Hearings Coordinator of the board.

(b) Default Orders.

(1) If no written answer has been filed within 20 days after the date of service, the board attorney assigned to the matter shall file a motion to remand with SOAH and respondent based on respondent's default.

(2) If the case is remanded, the staff attorney shall present to the board a motion for default. After consideration of the Complaint and the motion for default, the board may then make a Determination of Default and issue a Default Order deeming the allegations in the Complaint as true.

(3) In the event that the respondent wishes to file an answer after a Default Order has been entered by the board the respondent must file a Motion for Rehearing to Set Aside Default Order within 20 days after the issuance of the Default Order, which shall show that:

(A) the failure to timely file a written answer was caused by fraud, accident, or wrongful act or official mistake of the board;

(B) the failure to timely file a written answer was not the result of respondent's fault or negligence; and

(C) the respondent has a meritorious defense.

(4) The Motion for Rehearing shall be supported by affidavits and documentary evidence that present a prima facie case for a meritorious defense.

Source Note: The provisions of this §187.27 adopted to be effective July 4, 2004, 29 TexReg 6091; amended to be effective November 7, 2004, 29 TexReg 10113; amended to be effective January 25, 2006, 31 TexReg 394; amended to be effective November 29, 2009, 34 TexReg 8535; amended to be effective September 19, 2010, 35 TexReg 8355; amended to be effective February 28, 2011, 36 TexReg 1278