Section 187.28 - Discovery(a) Parties to SOAH proceedings shall have reasonable opportunity and methods of discovery as described in the APA, §164.005 and §164.007(d) of the Act, and SOAH rules.(b) Testifying expert witnesses. Unless otherwise agreed in writing by the parties or ordered by the ALJ, the Board shall file a designation of testifying expert witnesses, if any, no later than 90 days before the end of the discovery period. Other parties shall file a designation of testifying expert witnesses, if any, no later than 45 days after the Board's designation or 60 days before the end of the discovery period, whichever date is earlier. A party shall not be allowed to present a testifying expert witness who has not been timely designated, except by a pre-hearing order of the ALJ. (1) A designation of testifying expert witnesses shall include: (A) the name, address, and telephone number of each expert witness and, unless the party shows that the testifying expert witness is not retained by, employed by, testifying as a courtesy, or otherwise in the control of the party,(B) a current curriculum vitae, résumé, and bibliography of each expert witness.(2) Unless a party shows that a testifying expert witness is not retained by, employed by, testifying as a courtesy, or otherwise in the control of the party, the party shall make the testifying expert witness available for deposition reasonably promptly after the expert witness is designated.(c) Remedies and Sanctions. Upon the failure to comply with a discovery request to the extent required by the APA, §164.005 of the Act, SOAH rules or SOAH Order, or as agreed to between the parties in a discovery agreement, the presiding ALJ should, after notice and hearing, make such orders in regard to the failure as are just, and such orders may include one or more of the following:(1) an order granting a continuance;(2) an order limiting or restricting the admissibility and use of evidence, to include exclusion of evidence or testimony;(3) an order for payment by a party of the actual travel, lodging, discovery expenses; hearing and court reporter costs; but not attorney fees, incurred by an opposing party as a result of the failure to comply with the discovery requirements;(4) an order imposing a scheduling order providing for discovery deadlines necessary to remedy the failure to comply discovery requirements;(5) an order for remedies and sanctions agreed to by the parties in writing or on the record;(6) an order disallowing further discovery of any kind or of a particular kind by the offending party;(7) an order holding that designated facts be considered admitted for purposes of the proceeding;(8) an order refusing to allow the offending party to support or oppose a designated claim or defense or prohibiting the party from introducing designated matters into evidence;(9) an order disallowing in whole or in part requests for relief by the offending party and excluding evidence in support of those requests; or(10) an order striking pleadings or testimony, or both, in whole or in part.22 Tex. Admin. Code § 187.28
The provisions of this §187.28 adopted to be effective November 7, 2004, 29 TexReg 10113; amended to be effective January 25, 2006, 31 TexReg 394; amended to be effective January 4, 2007, 31 TexReg 10799; amended to be effective August 3, 2014, 39 TexReg 5749