Section 1.20 - Rules of EvidenceIn addition to any other rules of evidence provided for in the APA, Subchapter D, the following rules will apply to proceedings before the department.
(1) General rules. The rules of evidence as applied in nonjury civil cases in the district courts of this state shall be followed. Irrelevant, immaterial, or unduly repetitious evidence may be excluded. When necessary to ascertain facts not reasonably susceptible to proof under those rules, evidence not admissible under them may be admitted (except where precluded by statute) if it is of a type commonly relied upon by reasonably prudent people in the conduct of their affairs. The rules of privilege recognized by law shall be effective in department proceedings. Objections to evidentiary offers may be made and shall be noted in the record. No evidence shall be admissible in a proceeding if it is beyond the scope of the notice or amended pleadings of such proceeding.(2) Representative documents. When a large number of similar documents is offered, the administrative law judge may limit those admitted to a number which are typical and representative, and may require the abstracting of the relevant data from the documents and the presentation of the abstracts in the form of an exhibit; however, before making this requirement, the administrative law judge shall see that all parties of record or their representatives are given an opportunity to examine the documents from which the abstracts are made.(3) Prepared testimony. The prepared testimony of a witness upon direct examination may be incorporated in the record as if read or received as an exhibit, upon the witness' being sworn and identifying same. Copies of the testimony shall be given to all parties to the proceeding. The witness identifying the testimony shall be subject to cross-examination, and the testimony shall be subject to a motion to strike in whole or in part.(4) Offer of proof. When testimony is excluded by ruling of the administrative law judge, the party offering such testimony shall be permitted to make an offer of proof by dictating it into the record or submitting the substance of the proposed testimony in writing, prior to the conclusion of the hearing, and such offer of proof shall be sufficient to preserve the point. The administrative law judge may ask such questions of the witness as he or she deems necessary to satisfy himself or herself that the witness would testify as represented in the offer of proof. An alleged error in sustaining an objection to questions asked on cross-examination may be preserved without making an offer of proof.(5) Uncontested proceedings. In any uncontested proceeding, the administrative law judge shall receive, without regard to the rules of evidence, any evidence of a form and character which would ordinarily be relied upon by prudent people in the conduct of their affairs (unless precluded by statute), including, without limitation, affidavits, documents, and other forms of hearsay testimony determined by the administrative law judge to be relevant.(6) Official notice. The administrative law judge may take official notice of judicially cognizable facts and of generally recognized facts within an area of the department's specialized knowledge or expertise, and the special skills or knowledge of the department and its staff may be utilized in evaluating the evidence. Parties shall be notified of the material noticed, including any staff memoranda or data, and shall be afforded an opportunity to contest the material so noticed.(7) Exclusion of witnesses. (A) Upon request by any party, the administrative law judge shall exclude witnesses other than parties from the hearing room, except when testifying.(B) The administrative law judge may order the witnesses, parties, attorneys, and all other persons present in the hearing room not to disclose to any witness excluded under this section the nature, substance, or purpose of testimony, exhibits, or other evidence introduced during the witness' absence.(C) A party that is not a natural person may designate an individual to remain in the hearings room, even though the individual may be a witness.4 Tex. Admin. Code § 1.20
The provisions of this §1.20 adopted to be effective January 18, 1991, 16 TexReg 113; amended to be effective August 3, 1993, 18 TexReg 4747; amended to be effective August 23, 1996, 21 TexReg 7656; Amended by Texas Register, Volume 47, Number 48, December 2, 2022, TexReg 8039, eff. 12/8/2022