10 TAC §1.12
The Texas Department of Housing and Community Affairs (the
Department) proposes new §1.12, concerning the Administrative Hearing
Guidelines. The purpose of this section is to provide hearing procedures for
Department programs and functions that have no federally or statutorily mandated
or regulated hearing procedures specific to that program or function.
Edwina P. Carrington, Executive Director, has determined that for the first
five-year period the proposed section is in effect, there will be no fiscal
implications for state or local government as a result of enforcing or administering
the rule.
Ms. Carrington also has determined that for each year of the first five
years the proposed section is in effect, the public benefit anticipated as
a result of enforcing the section will be will be more efficient disposition
of complaints. There will be no effect on persons, small businesses or micro-businesses.
There are no anticipated economic costs to persons, small businesses or micro-businesses
who are required to comply with the section as proposed. The proposed new
rule will not have an impact on any local economy.
Comments may be submitted to Anne O. Paddock , Deputy General Counsel,
Texas Department of Housing and Community Affairs, P.O. Box 13941, Austin,
Texas, 78711-3941 or by e-mail at the following address: apaddock@tdhca.state.tx.us.
The new section is proposed pursuant to the authority of the
Texas Government Code, Chapter 2306; and in accordance with the Texas Government
Code §2001.039.
The new section affects no other code, article or statute.
§1.12.Administrative Hearings.
(a)
Hearing Procedures. Unless otherwise expressly set forth
in the Manufactured Housing Standards Act and implementing regulations, the
Texas Department of Housing and Community Affairs (Department) Section 8 Administrative
Plan or any other applicable state plan approved by a federal funding source
or this section, all formal hearings for a contested case shall be held and
conducted pursuant to the Administrative Procedure Act (APA), Texas Government
Code, Chapter 2001, and the State Office of Administrative Hearings Rules
of Procedure (SOAH Rules), 1 TAC Chapter 155.
(1)
A contested case is defined pursuant to §2001.003(1)
of the APA as a proceeding in which the legal rights, duties, or privileges
of a party are to be determined by a state agency after an opportunity for
adjudicative hearing.
(2)
A party is defined pursuant to §2001.003(4) of the
APA as a person or state agency named or admitted as a party.
(3)
A person is defined pursuant to §2001.003(5) of the
APA as an individual, partnership, corporation, association, governmental
subdivision, or public or private organization that is not a state agency.
(4)
A state agency is defined pursuant to §2001.003(7)
as a state officer, board, commission, or department with statewise jurisdiction
that makes rules or determines contested cases. The term includes the State
Office of Administrative Hearings for the purpose of determining contested
cases. The term does not include:
(A)
a state agency wholly financed by federal money;
(B)
the legislature;
(C)
the courts;
(D)
the Texas Workers' Compensation Commission; or
(E)
an institution of higher education.
(5)
An informal review or an informal conference that provides
a party an additional opportunity to respond to a formal complaint is not
an adjudicative proceeding of a contested case for the purposes of Chapter
2001 of the APA and this section.
(b)
Request for Hearing. Pursuant to §2001.051 and §2001.052
of the APA, the Department, on its own motion or on the request of a party,
may request a formal hearing from the State Office of Administrative Hearings.
A request for a formal hearing by a party must be submitted within 15 calendar
days of receipt of notice of the action giving rise to the request for hearing.
The request for a formal hearing shall state the specific grounds upon which
the party wishes to challenge the department's action.
(c)
Notice of Hearing; Default Judgment. Service of notice
of a formal hearing shall be provided pursuant to §2001.051 -and §2001.052
of the APA and §155.27 of the SOAH Rules. Service may be made by sending
the notice to the party's last known address as shown by the Department's
records by certified mail, with return receipt requested. If, after receiving
notice of a hearing, a party fails to appear in person or by representative
on the day and time set for hearing or fails to appear by telephone in accordance
with §155.45 of the SOAH Rules, the hearing may proceed in that party's
absence and a default judgment may be entered pursuant to §155.55 of
the SOAH Rules.
(d)
Proposal for Decision. At the conclusion of the formal
hearing, the Administrative Law Judge issues a written Proposal for Decision
which includes findings of fact and conclusions of law, separately stated,
pursuant to §2001.141 and §2001.062 of the APA.
(e)
Exceptions. Pursuant to §2001.0623(d) of the APA,
each party has the right to file exceptions to the Proposal for Decision issued
by the Administrative Law Judge and present a brief with respect to the exceptions.
All exceptions must be filed with the Department within ten working days of
the Proposal for Decision, with replies to be filed within ten working days
of the filing of exceptions.
(f)
Final Order. The Department's Board of Directors shall
consider the final Proposal for Decision and decide whether to accept the
recommended findings of fact and conclusion of law and the sanction to be
imposed. The Department's Board of Directors adopts and incorporates the accepted
findings of fact and conclusion of law in the written Final Order.
(g)
Motion for Rehearing and Judicial Review. A person who
wishes to challenge a final decision must first file a motion for rehearing
in accordance with §§2001.145 - 2001.147 of the APA. A person who
has exhausted all administrative remedies available within the Department
and who is aggrieved by a final decision in a contested case is entitled to
judicial review in accordance with §§2001.171 - 2001.178 of the
APA.
(h)
Agreed Orders. The Department may dispose of a contested
case by agreement pursuant to §2001.056 of the APA.
(i)
Ex Parte Communications. Pursuant to §2001.061(a)
of the APA, unless required for the disposition of an ex parte matter unauthorized
by law, an employee or member of the Department assigned to render a decision
or to make findings of fact and conclusions of law in a contested case may
not directly or indirectly communicate in connection with an issue of fact
or law with a party or representative of a party, except on notice and opportunity
for each party to participate.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on April 1, 2002.
TRD-200202296
Edwina P. Carrington
Executive Director
Texas Department of Housing and Community Affairs
Earliest possible date of adoption: May 19, 2002
For further information, please call: (512) 475-3726