SECTION 213.16. Respondent's Answer in a Disciplinary Matter

(a) The respondent in a disciplinary matter shall file an answer to the formal charges and to every amendment thereof.

(b) The answer shall admit or deny each of the allegations in the charges or amendment thereof. If the respondent intends to deny only a part of an allegation, the respondent shall specify so much of it is true and shall deny only the remainder. The answer shall also include any other matter, whether of law or fact, upon which respondent intends to rely for his or her defense.

(c) If the Respondent fails to file a response to the Formal charges, the matter will be considered as a default case

(d) In a case of default, the Respondent will be deemed to have

(1) admitted all the factual allegations in the Formal charges;

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

(3) waived the opportunity for a hearing on the Formal charges; and

(4) waived objection to the recommended sanction in the Formal charges.

(e) The Executive Director may recommend that the Board enter a default order, based upon the allegations set out in the Formal charges, that adopts the sanction that was recommended in the Formal charges.

(f) Upon consideration of the case, the Board may:

(1) enter a default order under §2001.056 of the APA; or

(2) order the matter to be set for a hearing at SOAH.

(g) The respondent may amend his or her answer at any time permitted by the APA or SOAH rules.

(h) The first answer filed shall be entitled "answer," the first amended answer filed shall be entitled "first amended answer," and so forth.

(i) Any default judgment granted under this section will be entered on the basis of the factual allegations in the formal charges contained in the notice, and upon proof of proper notice to the Respondent. For purposes of this section, proper notice means notice sufficient to meet the provisions of the Texas Government Code §2001.054 and §213.10 of this title (relating to Notice and Service). Such notice shall also include the following language in capital letters in 12 point boldface type: FAILURE TO FILE A WRITTEN ANSWER TO THE FORMAL CHARGES, EITHER PERSONALLY OR BY LEGAL REPRESENTATIVE, WILL RESULT IN THE ALLEGATIONS CONTAINED IN THE FORMAL CHARGES BEING ADMITTED AS TRUE AND THE PROPOSED RECOMMENDATION OF STAFF SHALL BE GRANTED BY DEFAULT.

(j) A motion for rehearing which requests that the Board vacate its default order under this section shall be granted if movant proves by the preponderance of the evidence that the failure to answer the formal charges was not intentional or the result of conscious indifference, but due to accident or mistake--provided that movant has a meritorious defense to the factual allegations contained in the formal charges and the granting thereof will occasion no delay or otherwise work an injury to the Board.

Source Note: The provisions of this §213.16 adopted to be effective August 15, 2002, 27 TexReg 7107