SECTION 67.89. Presentation of Contested Cases to the Board or its Designee

(a) When a request for oral argument is granted pursuant to §67.87 of this chapter (relating to submission of appeals to the Board's designee), the Examiner who prepared the proposal for decision shall, if practicable, present the Proceeding to the Board or its designee during the Board meeting, or the designee's Proceeding, at which the case has been placed for final administrative decision. In presenting the case, the Examiner shall:

(1) concisely state the nature of the case;

(2) concisely state the positions of the Parties;

(3) concisely state his or her proposal for deciding the case and the basis for that proposal; and

(4) respond to questions concerning the hearing and the proposal directed to him from a Trustee or the Board's designee. The Examiner shall not present information that is not part of the record of the Proceeding.

(b) In a Proceeding that the Executive Director, in his/her sole discretion, determines should be set for consideration before the Board, a Party may present oral argument to the Board before the final determination of any Proceeding by filing with the Executive Director a written request to do so at least three (3) business days prior to the day on which the Board is to consider the Proceeding. If such a request is not timely filed, oral argument shall be allowed only at the discretion of the Board. In the event that oral argument is allowed and all Parties are present and prepared to present oral argument, the case will proceed. Otherwise, the Board may, in its sole discretion, hear the case in the absence of any Party, any Authorized Representative or the Examiner, or continue the case to a future meeting.

(c) A Trustee or the Board's designee may question the Examiner concerning the hearing, the evidence, the proposal for decision or any other matter concerning the record of the Proceeding. In responding to a question, the Examiner must advise the chairman of the Board or the Board's designee if the Examiner believes the question involves a matter outside the record of the Proceeding or is otherwise improper. The chairman of the Board or the Board's designee may ask the general counsel for his/her opinion concerning the propriety of a particular question. The decision of the chairman of the Board or the Board's designee concerning the propriety of a question shall be final.

(d) A Trustee or the Board's designee may ask the general counsel for his/her opinion concerning the legality of a particular course of action or decision, the law or rules governing a particular aspect of matters within the jurisdiction of the Board or its designee, the evaluation of the evidence, or any other legal matter. The general counsel shall advise the chairman of the Board or the Board's designee if the general counsel is of the opinion that responding to a particular question would be inappropriate. The decision of the chairman of the Board or the Board's designee concerning the propriety of a question shall be final.

(e) If oral argument is allowed, then each Party will be given time, not to exceed ten (10) minutes, unless additional time is allowed by the chairman of the Board or the Board's designee, to present oral argument to the Board or its designee. Questions by the Board or its designee and answers to such questions will not be considered as part of the time limitations described in this section. Oral argument concerning matters outside the record and proffered documents not presented during the evidentiary hearing before the Examiner will not be allowed.

(f) After the Examiner presents his proposal for decision, the Trustees or the Board's designee have been given an opportunity to ask questions, oral argument is presented, and the Trustees or the Board's designee have been given an opportunity to discuss and consider the case, the Board or its designee shall act on the case and render a decision.

Source Note: The provisions of this §67.89 adopted to be effective March 19, 1986, 11 TexReg 1149; amended to be effective May 17, 1988, 13 TexReg 2164; amended to be effective May 30, 1991, 16 TexReg 2737; 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