SECTION 67.55. Order of Procedure

(a) The Examiner shall open the hearing and make a concise statement of its scope and purposes. Once the hearing has begun, the Parties or their Authorized Representatives may be off the record only when the Examiner permits. A Party may, without requesting leave from the Examiner, record any non-privileged off the record discussions during the hearing. If a discussion off the record is pertinent, the Examiner may summarize such discussion for the record. Appearances are to be entered on the record by all Parties, their Authorized Representatives, and any Persons who may testify during the Proceedings. All Persons present who may testify will then be placed under oath. Thereafter, Parties may make motions or opening statements.

(b) Burden of Proof. The Party seeking relief is the Party with the burden of proof on all issues throughout the Proceedings, including issues in the nature of an affirmative defense.

(c) Following opening statements, if any, by both sides, the Party with the burden of proof may be directed to proceed with his direct case. Questions from the Examiner shall be limited to matters of clarification only, and such questions shall not be used to assist Parties with the burden of proof in meeting their burden or as a substitute for cross-examination.

(d) Invocation of "The Rule." Upon the motion of any Party to the Proceeding, nonparty witnesses shall be excluded during the testimony phase of the Proceeding as provided in Tex. R. Civ. P. 267(a) - (d). A witness or Party's failure to comply with the Examiner's Order granting such motion may be subject to an appropriate sanction as provided in §67.13 of this chapter (relating to conduct and decorum).

(e) Where the Proceeding is initiated at the Executive Director's or the Board's or its designee's own call, or where several Proceedings are heard on a consolidated record, the Examiner shall designate who shall open and close and at what stage intervenors shall be permitted to offer evidence.

(f) Opportunity for cross-examination and presentation of direct and rebuttal evidence shall be afforded all Parties. After all Parties have completed the presentation of their evidence, and been afforded the opportunity to ask clarifying questions and to cross-examine adverse witnesses, closing arguments may be allowed. The Party with the burden of proof shall be entitled to open and close.

(g) On a proper motion and showing of good cause that evidence was not reasonably known or knowable to the movant, or was not provided in response to a proper discovery request, the Examiner may also call upon any Party to provide further relevant and material evidence upon any issue in the Proceeding before the issuance of a proposal for decision; however, no such evidence shall be allowed into the record without an opportunity for discovery, inspection, cross-examination, and rebuttal by the other Parties.

Source Note: The provisions of this §67.55 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 14, 2006, 31 TexReg 7359; amended to be effective December 24, 2015, 40 TexReg 9302