SECTION 281.30. Pleadings and Notice in a Contested Case

(a) The board initiates a contested case hearing at the State Office of Administrative Hearings by filing a complaint with notice of not less than 10 days as specified in subsection (b) of this section to the applicant, licensee, or registrant.

(1) The complaint shall contain the matters asserted by the board, including the alleged conduct under which the enforcement action is based, and a statement of legal authority to the statutes or rules allegedly violated and those establishing jurisdiction.

(2) The following statement in capital letters in 12 point boldface type shall be contained in the complaint: FAILURE TO RESPOND TO THE ALLEGATIONS IN WRITING WILL RESULT IN THE ALLEGATIONS BEING ADMITTED AS TRUE AND AN ORDER BEING ENTERED BY THE BOARD BY DEFAULT.

(b) The board may serve notice of the complaint initiating a contested case hearing at the State Office of Administrative Hearings by sending it to the party's current publicly available address of record and the party's current confidential address of record if the confidential address of record is different from the party's publicly available address of record as shown by the board's records. The notice shall be served by delivering a copy to the party either in person or by certified or registered mail, return receipt requested.

(c) The applicant, licensee, or registrant shall file a written answer with the State Office of Administrative Hearings in response to the complaint with service to the board within 23 days after the date of service of the complaint. The answer shall admit or deny each of the allegations. If the party intends to deny only a part of an allegation, the party shall specify so much of it is true and shall deny only the remainder. The response shall also include any other matter, whether of law or fact, upon which the licensee or registrant intends to rely for his or her defense. If the party fails to respond by filing a timely answer, the board’s attorney files a motion to remand the case to the board for entry of a default order, and the matter will be considered as a default case and the party will be deemed to have:

(1) admitted all the factual allegations in the notice specified in subsection (b) of this section;

(2) waived notice of a hearing;

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

(4) waived objection to the recommended sanctions made at the informal conference.

(d) If the contested case is remanded to the board by the State Office of Administrative Hearings as specified in subsection (c) of this section, the board may enter a default order under §2001.056 of the Administrative Procedure Act.

(e) Any default judgment granted under this section will be entered on the basis of the factual allegations in the notice specified in subsection (b) of this section, and upon proof of proper notice to the party's address of record.

(f) The party may file a motion for rehearing to set aside the default order. The motion, which requests that the Board vacate its default order under this section, shall be granted if the motion presents convincing evidence that the failure to respond to the notice specified in subsection (b) of this section was not intentional or the result of conscious indifference, but due to accident or mistake, provided that the party has a meritorious defense to the factual allegations contained in the notice specified in subsection (b) of this section and the granting thereof will not result in delay or injury to the public or the Board.

Source Note: The provisions of this §281.30 adopted to be effective March 25, 2007, 32 TexReg 1508; amended to be effective September 12, 2011, 36 TexReg 5845; amended to be effective September 9, 2012, 37 TexReg 6916