SECTION 140.430. Procedures for Contested Cases

(a) The provisions of this section shall apply to licensees under this subchapter, notwithstanding the provisions of §442.103 of this title (relating to Procedure for Contested Cases for Counselor and Facility Licenses).

(b) Where the department has issued a notice of violation that has not been resolved by informal disposition and the respondent has timely requested a hearing, the department will proceed to a hearing under the APA, Texas Government Code, Chapter 2001; SOAH Rules of Procedure, 1 Texas Administrative Code, Chapter 155; and formal hearing procedures set forth at §§1.21, 1.23, 1.25, and 1.27 of this title.

(c) The department will provide written notice of the hearing to the respondent by first class mail and certified mail, return receipt requested, at respondent's last known address as reflected in the department's address of record for the respondent. A Notice of Hearing that complies with the requirements of Texas Government Code, §2001.051 and §2001.052 (relating to Opportunity for Hearing and Participation; Notice of Hearing and Contents of Notice), and 1 Texas Administrative Code §155.401 (relating to Notice of Hearing), will be provided at least ten days before the date of the hearing. Respondent's receipt of the Notice of Hearing at least ten days before the date of the hearing will be presumed if the department mailed the Notice of Hearing at least ten days before the date of the hearing, and allowed an additional three days for mailing.

(d) If the respondent fails to appear at a scheduled SOAH hearing after being given proper notice of the hearing at respondent's last known address as reflected in the department's address of record for the respondent, the department may move for dismissal of the case from the SOAH docket, without prejudice, to allow for informal disposition of the case by default order, as provided for in §1.25 of this title (relating to Default). Based upon the respondent's failure to appear after proper notice of the hearing, the factual allegations of the notice letter may be deemed true and shall form the basis of a final default order by the department making findings of fact and conclusions of law consistent with the notice of violation, and implementing the proposed action.

(e) If a respondent makes a written request to the department for a transcript of a SOAH proceeding, the department will assess the cost of the transcript to that respondent. If there were multiple respondents to the proceeding, the department will assess the cost proportionally among those respondents requesting a transcript. Where a respondent appeals a final department decision in a contested case, the respondent shall pay the cost of preparation of the original or a certified copy of the record that is required to be sent to the reviewing court, and such charge may be assessed against respondent by the court in accordance with the Texas Rules of Civil Procedure as a court cost.

Source Note: The provisions of this §140.430 adopted to be effective August 9, 2012, 37 TexReg 5788