SECTION 1.813. Appeal

(a) Hearing.

(1) Notice. An applicant who does not receive notice as to the complete or deficient status of a permit application within the period established in this subchapter for such application may petition for a hearing to review the matter.

(2) Processing. An applicant whose permit is not approved or denied within the period established in this subchapter for such permit may petition for a hearing to review the matter.

(3) Procedure. A hearing under this section shall be in accordance with the Insurance Code, the Administrative Procedure and Texas Register Act, and Subchapter A of this chapter (relating to Rules of Practice and Procedure).

(b) Petition. A petition filed under this section must be in writing and directed to the commissioner; except that, for periods established in §1.812 of this title (relating to State Fire Marshal Permits), a petition shall be made to the fire marshal. The petition shall identify the applicant, indicate the type of permit sought and the date of the application, specify each provision in this subchapter that the agency has violated, and describe with particularity how the agency has violated each provision. The petition shall be filed with the docket clerk of the agency's hearings section.

(c) Decision. An appeal filed under this section shall be decided in the applicant's favor if the commissioner or fire marshal, as the case may be, finds that:

(1) the agency exceeded an established period under this subchapter; and

(2) the agency failed to establish good cause for exceeding the period.

(d) Good cause. The agency is considered to have good cause for exceeding a notice or processing period established for a permit if:

(1) the number of permits to be processed exceeds by 15% or more the number of permits processed in the same calendar quarter of the preceding year;

(2) the agency must rely on another public or private entity for all or part of its permit processing, and the delay is caused by the other entity;

(3) the hearing and decision-making process results in reasonable delay under the circumstances;

(4) the applicant is under administrative review; or

(5) any other conditions exist giving the agency good cause for exceeding a notice or processing period.

(e) Board review. A permit applicant aggrieved by a final decision or order of the commissioner or the fire marshal concerning a period established by these sections may appeal to the board in writing after the decision or order complained of is final. To the extent not superseded by the Administrative Procedure and Texas Register Act, the procedures specified in the Insurance Code, Article 1.04(d), apply to appeals to the board from decisions of the commissioner and are adopted for appeals to the board from decisions of the fire marshal. An appeal under this subchapter shall be made within 30 days from the date that the writing evidencing the official action or order complained of is final and appealable; but, for good cause shown, the board may allow an appeal after that date.

(f) Relief.

(1) Complete or deficient status. An applicant who maintains a successful appeal under subsection (c) of this section for agency failure to issue notice as to the complete or deficient status of an application shall be entitled to notice of application status.

(2) Permit approval or denial. An applicant who maintains a successful appeal under subsection (c) of this section for agency failure to approve or deny a permit shall be entitled to such approval or denial of the permit and to full reimbursement of all filing fees that have been paid to the agency in connection with the application.

Source Note: The provisions of this §1.813 adopted to be effective January 20, 1989, 14 TexReg 114.