SECTION 105.10. Default

(a) The Securities Commissioner may make an informal disposition of the contested case by default by issuing an order in which the relief requested in the notice of hearing is granted and the matters set forth in the notice are deemed admitted as true upon proof to the Commissioner that the notice was mailed to or personally served on a respondent in accordance with §105.6 of this title (relating to Service) and that such respondent has failed to:

(1) file a written response as provided in §105.7 of this title (relating to Written Response to Notice of Hearing); or

(2) appear in person or through an authorized representative on the day and at the time set for the hearing of the case, whether or not a written response has been filed.

(b) Upon the motion of a respondent, the Commissioner may, for good cause shown, set aside a default order and reschedule a hearing with SOAH.

(1) A motion by a respondent to set aside a default order shall be filed with the Commissioner not later than the 20th day after the date on which the respondent or the respondent's attorney of record is notified of the default order in the manner prescribed by the APA.

(2) A reply by the Staff to the motion by a respondent to set aside a default order must be filed with the Commissioner not later than the 30th day after the date on which the respondent or the respondent's attorney of record is notified of the default order in the manner prescribed by the APA.

(3) The Commissioner shall act on a motion for rehearing not later than the 45th day after the date on which the respondent or the respondent's attorney of record is notified of the default order in the manner prescribed by the APA or the motion for rehearing is overruled by operation of law.

Source Note: The provisions of this §105.10 adopted to be effective April 3, 2012, 37 TexReg 2165