SECTION 367.22. Failure to Attend Hearing and Default

(a) Default. If the 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 must issue a default proposal for decision that can be adopted by the Board.

(b) Failure to issue default proposal for decision. If the administrative law judge grants a default but does not issue a default proposal for decision and instead issues a default order dismissing the case and returning the file to the Plumbing Board 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 the allegations in the complaint as true and imposing the sanctions requested in the complaint.

(c) Failure to prosecute: If an applicant for licensure fails to appear at a contested case hearing at the SOAH, the administrative law judge must dismiss the case for want of prosecution, any relevant application will be withdrawn, and the Board may not consider a subsequent application from the party until the first anniversary of the date of dismissal of the case at SOAH. If the administrative law judge dismisses the case and returns the file to the board for informal disposition on a default basis in accordance with §2001.056 of the Texas Government Code, the Board will issue a final order referring to this rule and advising the applicant that his or her application was withdrawn and that he or she may reapply for licensure one year after the date of the dismissal of the case at the SOAH.

(d) Applicants for licensure bear the burden to prove fitness for licensure.

(e) Contesting a final order issued following a default or dismissal for failure to prosecute. In the event that the respondent wishes to contest a final order issued following a default or dismissal for failure to prosecute, the respondent must timely file a motion for rehearing as provided by Chapter 2001 of the Texas Government Code and this motion must show the following:

(1) the failure to timely file a written answer or appear at the SOAH hearing was caused by fraud, accident, or wrongful act or mistake of the Board;

(2) the failure to timely file a written answer or appear at the SOAH hearing was not the result of respondent's fault or negligence nor of respondent's representative if any;

(3) the respondent has a meritorious defense; and

(4) the motion for rehearing must be supported by affidavits and documentary evidence of the above and show a prima facie case for a meritorious defense.

Source Note: The provisions of this §367.22 adopted to be effective August 29, 2018, 43 TexReg 5531