SECTION 67.43. Dismissal without Hearing

(a) Motions for dismissal without a hearing may be filed and ruled upon by the Executive Director, when the matter is pending before ERS, or by the Examiner, when the matter is pending before the Examiner, for any of the following reasons:

(1) failure to prosecute a claim;

(2) unnecessary duplication of Proceedings or res judicata;

(3) withdrawal or voluntary dismissal of appeal;

(4) moot questions or obsolete petitions;

(5) following a Member's request for a refund of his retirement account, or other matters establishing a lack of jurisdiction;

(6) upon agreement of the Parties pursuant to §67.11 of this chapter (relating to agreements to be in writing);

(7) failure to execute a release pursuant to §67.5(a) of this chapter (relating to appeals);

(8) failure to appear at any hearing for which notice has been served; or

(9) assertion of a baseless appeal as provided by Rule 91a of the Texas Rules of Civil Procedure with respect to the procedures for dismissal of a baseless cause of action.

(b) The Examiner shall, and the Board, its designee, or the Executive Director may, dismiss the appeal of any Person who has filed written notice of the appeal but who defaults by:

(1) failing to personally appear at any hearing if the Appellant is not represented by an Authorized Representative unless such appearance is waived by agreement of all the Parties pursuant to §67.11 of this chapter;

(2) failing to personally appear at any hearing if the Appellant is represented by an Authorized Representative unless the Appellant gives written notice at least ten (10) days prior to the date of the hearing that the Appellant will not personally appear or unless such appearance is waived by agreement of all Parties pursuant to §67.11 of this chapter; or

(3) failing to request a hearing or to take some other action specified by the Examiner or Executive Director within thirty (30) days after notice is mailed of intention to dismiss the claim.

(c) The Board, its designee, or the Executive Director may dismiss an appeal for any of the reasons described in subsection (a) of this section. A dismissal of an appeal by the Board, its designee, or the Executive Director constitutes final Agency action on the appeal and no administrative appeal from the decision is available.

(d) All dismissals by an Examiner under this section are mandatory and shall be unconditional. Upon a timely motion to reinstate and a showing of good cause, the Executive Director may, in his/her sole discretion, thereafter permit reinstatement of an appeal dismissed for failure to prosecute a claim. A motion to reinstate may not be filed later than thirty (30) days from the date the Order of dismissal is served. An Order denying a motion to reinstate constitutes final Agency action and no administrative appeal from the decision is available.

Source Note: The provisions of this §67.43 adopted to be effective March 19, 1986, 11 TexReg 1149; amended to be effective January 10, 1999, 24 TexReg 165; amended to be effective September 16, 1999, 24 TexReg 7275; amended to be effective September 14, 2006, 31 TexReg 7359; amended to be effective December 26, 2013, 38 TexReg 9373; amended to be effective December 24, 2015, 40 TexReg 9302