1 Tex. Admin. Code § 155.501

Current through Register Vol. 49, No. 48, November 29, 2024

Section 155.501 - Failure to Attend Hearing and Default Proceedings

(a) If a party fails to appear for the hearing, the opposing party may move to proceed in that party's absence on a default basis.

(b) A motion for a default proceeding under this section must be supported by adequate proof of the following:

(1) the notice of hearing included a disclosure in at least 12-point, bold-face type that the factual matters asserted in the notice or pleadings could be deemed admitted and that the relief sought might be granted by default against the party that fails to appear at the hearing;

(2) the notice of hearing satisfies the requirements of Tex. Gov't Code § RSA 2001.051 and § 2001.052, and § RSA 155.401 of this chapter; and

(3) the notice of hearing and any pleadings sought to be admitted were:

(A) issued or received by the defaulting party; or

(B) properly served to the defaulting party or their attorney.

(c) In the absence of a motion for default or adequate proof to support a default, the judge shall continue the case and direct the party responsible to provide adequate notice of hearing. If the responsible party persists in failing to provide adequate notice, the judge may dismiss the case from the SOAH docket for want of prosecution.

(d) Upon receiving a motion for default and the required showing of proof to support a default, the judge may grant the motion and issue one of the following:

(1) Default dismissal. In default proceedings where SOAH is not authorized by law to render a final decision in the proceeding, upon motion for default dismissal, the judge may issue an order finding adequate notice, granting a default dismissal based on facts deemed to be admitted.

(2) Default proposal for decision. In default proceedings where SOAH is not authorized by law to render a final decision in the proceeding, upon motion for a default proposal for decision, the judge may deem admitted the factual matters asserted in the notice of hearing or the non-defaulting party's pleadings and issue a proposal for decision.

(3) Default decision. In default proceedings where SOAH is authorized by law to render a final determination in the proceeding, upon motion for a default decision, the judge may deem admitted the factual matters asserted in the notice of hearing or the non-defaulting party's pleadings and issue a default decision.

(e) Default dismissals.

(1) An order of default dismissal issued under subsection (d)(1) of this section shall inform the party of the opportunity to have the default set aside under this subsection by filing an adequate motion no later than 15 days after the issuance of the order of default dismissal.

(2) If a motion to set aside a default dismissal is filed within 15 days after the issuance of an order of default dismissal, the judge will rule on the motion and either:

(A) grant the motion, set aside the default, and reopen the hearing for good cause shown; or

(B) issue an order denying the motion and remand the case to the referring agency for informal disposition on a default basis in accordance with Tex. Gov't Code § RSA 2001.056.

(3) In the absence of a timely motion to set aside a default, the case will be remanded to the referring agency for informal disposition on a default basis in accordance with Tex. Gov't Code § RSA 2001.056 after the expiration of 15 days from the date of the order of default dismissal.

(4) Dismissal under this section removes the case from the SOAH docket without a decision on the merits.

(f) Default proposals for decision. A default proposal for decision issued under subsection (d)(2) of this section is subject to § RSA 155.507 of this chapter.

(g) Default decisions.

(1) Default decisions are subject to motions for rehearing as provided for in the APA.

(2) A default decision issued under subsection (d)(3) of this section shall inform the party of the opportunity to have the default set aside by filing a motion for rehearing under Tex. Gov't Code Chapter 2001, Subchapter F.

(h) Motions to Set Aside Default.

(1) A motion to set aside default under this section shall set forth the grounds for reinstatement or rehearing and must be supported by affidavit of the movant or their attorney that:

(A) the party had no notice of the hearing;

(B) the party had no notice of the consequences for failure to appear; or

(C) although the party had notice, its failure to appear was not intentional or the result of conscious indifference, but due to reasonable mistake or accident that can be supported by adequate proof; and

(D) a statement of whether the motion is opposed, and if the motion is opposed, a list of dates and times for a hearing on the motion that are agreeable to both parties.

(2) Whether or not the motion is opposed, the judge may rule on the motion without setting a hearing or may set a hearing to consider the motion. If the judge finds good cause for the defaulting party's failure to appear, the judge shall vacate the default and reset the case for a hearing.

1 Tex. Admin. Code § 155.501

The provisions of this §155.501 adopted to be effective November 26, 2008, 33 TexReg 9451; Amended to be effective September 22, 2011, 36 TexReg 6257; Adopted by Texas Register, Volume 41, Number 44, October 28, 2016, TexReg 8603, eff. 1/1/2017; Amended by Texas Register, Volume 45, Number 47, November 20, 2020, TexReg 8305, eff. 11/29/2020