Section 163.47 - Contested Matters(a) Right to Contest Adverse Proposals. (1) If TDCJ-CJAD (hereinafter referred to as the division) proposes to deny, revoke, or suspend the certification of a CSO or to reprimand such officer shall be entitled to notice and a hearing before the division or a hearings examiner appointed by the division. Hearings before a hearings examiner shall be conducted pursuant to the procedures set forth in subsection (h) of this section.(2) If the division proposes the reduction, refusal, or suspension of payment of state aid, not including the refusal to provide or a reduction of discretionary grant funding other than funds suspended or reduced during a funding cycle, or intends to impose budget control over a CSCD (hereinafter referred to as the department), the department shall be provided with a notice and offered a hearing.(b) Notice of Proposed Action. (1) The division shall issue a written notice that: (A) defines specifically the alleged conduct that constitutes substantial noncompliance with division standards or requirements;(B) indicates the proposed action to be taken in the matter;(C) provides a succinct statement of the reasons for the proposed action;(D) makes reference to the particular sections of the statutes, standards, and rules involved; and,(E) informs the supervision officer or department of the right to request a hearing.(2) The notice must be signed by the TDCJ-CJAD director and sent by registered or certified mail, return receipt requested and postage prepaid. If the proposed action is against a CSO, then the notice must be sent to the individual with a copy forwarded to the director of the department.(c) Request for Further Hearing Before the Judicial Advisory Council. A department or CSO who received written notice of the division's proposed adverse action may after the conclusion and results of the hearing before the Division or Hearings Examiner provided under subsection (a) of this section, request a further hearing to contest the matter before the Judicial Advisory Council (JAC). (1) Within 15 working days (for purposes of this section, the term days refers to business days other than weekends or holidays) of the receipt of the written notice of the results of the hearing before the Division or Hearings Examiner, the respondent CSO or department must submit in writing a request for a further hearing before the JAC to the division director and the chairperson of the JAC.(2) The request for further hearing before the JAC must include a succinct statement of the grounds upon which the proposed action is contested and all grounds upon which the effected individual or department refutes the basis of the proposed action and any results from the initial hearing before the Division or Hearings Examiner.(3) The JAC shall offer the affected CSO or department an opportunity to be heard at the next regularly scheduled meeting of the JAC held immediately after receipt of the request for hearing. If no meeting is scheduled within 60 days of the receipt of the request for further hearing before the JAC, then the chairperson shall schedule a specially-called meeting to be held no later than 60 days from the receipt of the applicable request for further hearing before the JAC.(4) The chairperson shall cause a written notice to be issued to the affected CSO or department informing the party of: (A) the time, date, and location of the hearing;(B) the legal authority and jurisdiction under which the hearing is to be held; and(C) the manner in which the hearing will be conducted. Notice shall be sent by registered or certified mail, return receipt requested, not less than 10 days prior to the hearing.(d) The Division and the Affected Party Shall Each Be Given Thirty Minutes to Present Their Respective Sides. Testimony may be given orally under oath or through a prepared written statement or affidavit as acknowledged before a notary public. No more than three witnesses per side shall testify. However, upon the request of either party made prior to the hearing and at the discretion of the chairperson, the time for making a presentation and the number of witnesses needed to testify may be increased.(e) At the Conclusion of the Hearing Before the JAC, the Members of the JAC Shall Vote Whether to Recommend that the Division's Proposed Adverse Action be Withdrawn, Modified, or Affirmed. Within 10 days of the recommended vote of the JAC, the TDCJ-CJAD director shall notify the officer, department director, and/or administrative judge concerning whether or not the director concurs with the recommendation of the JAC. Notice shall be made in writing and sent by registered or certified mail, return receipt requested in accordance with subsection (b)(2) of this section.(f) Failure to Request a Hearing Before the JAC Waives any Further Appeal to the Texas Board of Criminal Justice.(g) Request for Hearing Before the Texas Board of Criminal Justice. Except as provided in subsection (f) of this section and paragraph (2) of this subsection a department or supervision officer may contest a final proposed action of the division director before the Texas Board of Criminal Justice. (1) Within 15 days of the receipt of the written notice of the final proposed action of the division director, the affected officer or department must submit in writing to the Chairperson of the Texas Board of Criminal Justice with a copy forwarded to the division director a request for hearing before the Board.(2) Failure to submit the request for hearing within the specified time period waives any future appeal before the Board.(3) Within 20 days of receipt of the request for hearing, the general counsel of the Texas Department of Criminal Justice or his designee shall file with the State Office of Administrative Hearings a request for assignment of administrative law judge. Said request shall be accompanied with a complaint containing the same information as required under subsectin (b)(1)(A) - (E) of this section and also including a statement of the recommendation of the JAC and the division director's final proposed action. Said request shall also be accompanied with a written statement of applicable rules or policies of the division and agency. The complaint shall designate the parties in this contested matter. The affected officer or department who is appealing the proposed adverse action of the TDCJ-CJAD director shall be designated as the petitioner. The division shall be designated as the respondent. Said request and complaint shall be sent to the officer, department director and/or administrative judge by registered or certified mail, return receipt requested and postage prepaid.(4) Division Representative. The general counsel of the Texas Department of Criminal Justice or his/her designee shall represent the division. The general counsel has authority over the manner and substance of the presentation of the division's case.(5) Representation for Petitioner. Any petitioner may appear and be represented by an attorney at law authorized to practice law in the State of Texas. The petitioner may appear on his own behalf or appearance may be made by his duly authorized representative.(6) Within 20 days of the receipt of the complaint the petitioner shall cause a response to be served on the division. The response shall specify which particulars of the complaint that the petitioner contests. In addition, the petitioner shall include any other defense and/or supporting factual statement in his response which was not previously raised by written pleading in the prior hearing. Said response shall be sent by certified mail, return receipt requested to the general counsel or his designee and to the clerk of the administrative law judge in accordance with subsection (h)(8)(A) of this section.(h) Administrative Hearing Procedures. (1) Notice of Hearing. The petitioner and other parties shall be given no less than 10 days notice of any scheduled hearing. Notice shall be sent by registered or certified mail, return receipt requested.(2) Motions for Consideration. (A) All motions for consideration must be filed with the clerk of the administrative law judge no fewer than five days prior to the date in which the matter is scheduled to be heard.(B) Any motion relating to a pending proceeding, unless made during a hearing, must be in writing and must specify the desired relief, the reason, and basis for this relief. If based upon matters which do not appear on record, it must be supported by affidavit.(C) If any party has appeared in the proceeding by attorney or other representative authorized to make an appearance, the attorney or other representative must be served. The willful failure of any party to make such service will be sufficient grounds for the administrative law judge to enter an order striking the pleading from the record.(3) Prehearing Conference. On the motion of the petitioner or the respondent or on his/her own motion, the administrative law judge may direct the parties and their attorneys or representative to appear before him at a specified time and place for a conference before the hearing for the purpose of formulating issues and considering: (A) the possibility of making admissions of certain averments of facts or stipulations to avoid the unnecessary introduction of proof;(B) the simplification of issues;(C) the procedure at the hearing;(D) the specification of the number of witnesses;(E) matters to be officially noted;(F) the mutual exchange of prepared testimony and exhibits;(G) the date discovery is to be closed; and(H) such other matters as may aid in the simplification of the proceedings and the disposition of the matters in controversy.(4) Discovery and Depositions. (A) Discovery shall be provided and governed by Texas Government Code, Chapter 2001, Subchapter D, (the Administrative Procedure Act), and where no conflict exists with said Act, with the Texas Rules of Civil Procedure.(B) Depositions shall be taken in accordance with the requirements of Texas Government Code, Chapter 2001, Subchapter D, (the administrative Procedure Act), and where no conflict exists with said Act, with the Texas rules of Civil Procedure.(C) On its own motion or on the written request of a party, and on deposit of an amount that will reasonably ensure payment of the amount estimated to accrue under Texas Government Code, § 2001.103, the Texas Department of Criminal Justice shall issue a commission, addressed to the officers authorized by statute to take a deposition, requiring that the deposition of a witness be taken. The commission shall also authorize the issuance of any subpoena necessary to require that the witness appear and produce, at the time the deposition is taken, books, records, papers, or other objects that may be necessary and proper for the purpose of the hearing.(5) Rules of Evidence. (A) In hearings under these rules, irrelevant, immaterial, or unduly repetitious evidence shall be excluded. The rules of evidence as applied in non-jury civil cases in the district courts of the state shall be followed. However, evidence may be admitted if it is necessary to ascertain facts not reasonably susceptible of proof under the rules of evidence applicable to non-jury civil cases in district court, is not precluded by statute, and is of a type on which a reasonably prudent person commonly relies in the conduct of the person's affairs. Objections to evidentiary offers may be made and shall be noted in the record.(B) Documentary evidence may be received by the administrative law judge in the form of a copy or excerpt if the original is not readily available. On request, either party shall be given an opportunity to compare the copy with the original.(C) If a hearing will be expedited and the interests of the parties will not be prejudiced substantially, any part of the evidence may be received in written form or the parties may stipulate as to facts or circumstances or summarize same.(D) Either party may conduct cross-examination as required for a full and true disclosure of the facts.(E) On its own motion or on the written request of a party, the Texas Department of Criminal Justice shall issue a subpoena addressed to the sheriff or to a constable to require the attendance of a witness or the production of books, records, papers, or other objects that may be necessary and proper for the purposes of a proceeding if: (i) good cause is shown; and(ii) an amount is deposited that will reasonably ensure payment of the amounts estimated to accrue under Texas Government Code, § 2001.103.(F) Official notice may be taken by the administrative law judge of all facts judicially cognizable and generally recognized facts within the area of the agency's specialized knowledge. Parties shall be notified either before or during the hearing, or by reference in preliminary reports or otherwise, of the material officially noticed, including any staff memoranda or data, and afforded an opportunity to contest the material so noticed.(G) Upon notifying all parties, the administrative law judge may communicate with division or agency employees who have not participated in the hearing, to use the special skills or knowledge of the division and agency and its staff in evaluating the evidence. The administrative law judge may allow all parties to be present during this communication and at his sole discretion, may allow parties to question the employee.(H) Ex parte consultations. Any information considered by the administrative law judge in deciding the contested case must be shared with all parties. Private (ex parte) consultations, whether oral or written, about the substantive issues of the contested case are allowed only if their substance is shared with all parties.(I) Formal exceptions to rulings of the administrative law judge during the hearing shall be unnecessary. It shall be sufficient that the party at the time any ruling is made or sought shall have made known to the administrative law judge the action desired. When testimony is excluded by the administrative law judge, the party offering such evidence shall be permitted to make an offer of proof by dictating or submitting in writing the substance of the proposed testimony prior to the conclusion of the hearing, and such offer of proof shall be sufficient to preserve the point for review. The administrative law judge may ask such questions of the witness as he deems necessary to satisfy himself that the witness would testify as represented in the offer of proof.(6) Recording of Proceedings. (A) The proceedings of the hearing shall be electronically recorded. Upon request of any party to the proceedings, a copy of such recording shall be made available to the requesting party at cost.(B) Any party to the proceedings may request the presence of a court reporter to record the proceedings. Selection and payment for the services of the reporter shall be borne by the requesting party. All costs of transcriptions of any recordings shall be at the expense of the requesting party. A transcription becomes official when certified by the administrative law judge.(7) Conduct of Hearings. (A) The administrative law judge is in charge of the proceedings. The administrative law judge has the authority to administer oaths, examine witnesses, direct the issuance of subpoenas, and rule on the admissibility of evidence and amendments to pleadings. He may also establish reasonable time limits for conducting individual hearings, request additional information, and issue intermediate orders. The administrative law judge has the authority to issue any orders necessary to enforce his rulings. These include, but are not limited to: (i) exclusion of evidence or witnesses;(ii) exclusion of oral argument;(iii) summary orders or default judgment on any issues; or(iv) postponement or dismissal of the hearing with or without prejudice.(B) The petitioner shall open and present its evidence to establish its position on the matters involved. The respondent shall follow and present its evidence. The petitioner and respondent may thereafter present rebuttal evidence only. The petitioner shall be given the opportunity to offer final argument and the respondent the opportunity to respond in final argument but no additional evidence shall be presented absent leave of the administrative law judge for good cause shown.(C) Continuances. Continuances may be granted by the administrative law judge hearing the contested case. Motions for continuance shall be governed by §155.33(b) and (c) of this title.(8) Miscellaneous (A) Place of Filing. All notices, pleadings, motions, answers, affidavits, and other filings in a contested case shall be filed with the State Office of Administrative Hearings at 300 West 15th Street, Suite 502, Austin, Texas 78701-1649.(B) Computation of Time. In computing any period of time prescribed or allowed by these rules, by order of the administrative judge, board, or division, or by any applicable statute, the period shall begin on the day after the act, event, or default in controversy and conclude on the last day of such computed period, unless it be a Saturday, Sunday, or legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday, or legal holiday.(C) Agreement to be in Writing. No stipulation or agreement between the parties or their representatives regarding any matter involved in any proceeding before the board, division, or administrative law judge may be enforced unless it is in writing and signed by the parties or their representatives or unless it is dictated into the record during the course of a hearing.(i) Final Decision. (1) The administrative law judge shall draft and recommend to the Texas Board of Criminal Justice a proposed final decision based solely on the record which addresses all matters presented at the hearing. The proposed decision shall include findings of fact and conclusions of law, separately stated. The draft and recommendation shall be forwarded to the Board with a copy sent to each party and referred to the subcommittee for division affairs for review.(2) After examination of the draft and recommendation and review of the record of the hearing, the subcommittee shall indicate whether it will accept or reject the recommendation of the administrative law judge. A copy of the proposed decision shall be served on all parties and an opportunity shall be afforded to the party adversely affected by the proposed decision to file exceptions and present a brief to the board. Said exceptions and brief shall be filed within 10 days after the date of service of the proposed decision of the subcommittee with a copy served on the opposing party. Replies to such exceptions shall be filed within 10 days after the date for filing of such exceptions with a copy served on the opposing party.(3) The Board and subcommittee shall base their decision solely on the record. The Board and subcommittee shall not substitute their judgment for that of the division. The Board and subcommittee shall affirm the proposed action of the division unless they find that the proposed action is unlawful, arbitrary, or not supported by substantial evidence in the record.(4) The Texas Board of Criminal Justice shall render a decision within 60 days after the draft and recommendation of the administrative law judge is served on all parties. The decision must be in writing, and each board member joining in the decision must sign it. A party in a contested case shall be notified of any decision of the Board and a copy of the decision shall be forwarded to all parties by registered or certified mail, return receipt requested within five days after the final signature. A copy of the decision shall also be forwarded to the attorney of record, if any, for the party in a contested case. The agency shall keep a copy of the decision and shall keep an appropriate record of the mailing.(5) A decision in a contested case is final: on the expiration of the period for filing a motion for rehearing if a motion for rehearing is not filed in time; on the date the order overruling the motion for rehearing is rendered or the motion is overruled by operation of law if a motion for rehearing is filed on time; or on the date the decision is rendered if the agency finds that an imminent peril to the public health, safety, or welfare requires immediate effect of a decision. If a decision becomes final on the date the decision is rendered, the decision must recite a finding that an imminent peril to the public health, safety, and welfare requires immediate effect of the decision and the fact that the decision is final and effective on the date rendered.(j) Motion for Rehearing. (1) In order to preserve error for judicial review, the party who is aggrieved by a decision of the Board must file a written motion for rehearing with the Board.(2) The motion for rehearing must be addressed to the Chairperson of the Board of Criminal Justice and must be filed with the Executive Assistant to the Chairperson of the Board at P.O. Box 13084, Capitol Station, Austin, Texas 78711 within 20 days after the date that the party or the party's attorney of record is notified of the Board's decision. A copy of the motion for rehearing must be served on the opposing party by certified mail, return receipt requested, on the same day that motion is filed with the Board.(3) A reply to a motion for rehearing must be filed with the Texas Board of Criminal Justice not later than 30 days after the date that the party or the party's attorney of record is notified of the Board's decision. A copy of this reply must be served on the opposing party by certified mail, return receipt requested on the same day that the reply is filed with the Board.(4) The Board shall either grant or deny the motion for rehearing within 45 days after the date that the decision is rendered. If the Board does not rule on the motion for rehearing, the motion is overruled by operation of law 45 days after the date the party or his attorney is notified of the decision of the Board.(5) The Board may by written order extend the time for filing a motion or reply or ruling on the motion for rehearing, except that an extension may not extend the period for Board action beyond the 90th day after the date on which the party or the party's attorney of record is notified of the Board's decision. In the event of an extension, a motion for rehearing is overruled by operation of law on the date fixed by the order or, in the absence of a fixed date, 90 days after the date on which the party or the party's attorney of record is notified of the Board's decision.(k) Record. The record in a hearing under these standards consists of: (1) a copy of the division's notice of proposed action that generated the appeal;(2) the request for assignment of administrative law judge;(3) the notice of hearing;(4) all pleadings, motions, and intermediate rulings;(5) evidence received or considered;(6) a statement of matters officially noticed;(7) questions and offers of proof, objections, and rulings on them;(8) proposed findings and exceptions;(9) any decision, opinion, or report by the administrative law judge presiding at the hearing;(10) all staff memoranda or data submitted to or considered by the administrative law judge or members of the agency who are involved in making the decision;(11) the recording and transcription, if any, of the proceedings;(12) the administrative law judge's draft and recommendation;(13) the recommendation of the subcommittee of the board;(14) the Board's decision;(15) the motion for rehearing and any replies to it; and(16) the Board's ruling on the motion for rehearing.37 Tex. Admin. Code § 163.47
The provisions of this §163.47 adopted to be effective August 16, 1995, 20 TexReg 5799; amended to be effective October 13, 1997, 22 TexReg 9896; amended to be effective June 20, 2002, 27 TexReg 5220