Part 7.
STATE OFFICE OF ADMINISTRATIVE HEARINGS
Chapter 155.
RULES OF PROCEDURES
1 TAC §§155.1, 155.5, 155.19, 155.30, 155.37
The State Office of Administrative Hearings (SOAH) proposes
amendments to §155.1, concerning Purpose and Scope; §155.5, concerning
Definitions; §155.19, concerning Computation of Time; §155.30, concerning
Motions; and §155.37, concerning Settlement Conferences. In general,
the amendments are proposed to correct words in titles, correct citations,
and make minor wording changes.
Specifically, the reasons for proposing the amendments are as follows:
Sections 155.1(a) and 155.5(4) are amended to change the name of the Department
of Human Services to its current title of "Department of Aging and Disability."
Section 155.19(c) is amended to correct a typographical error. Both §155.19(c)
and §155.30(g) are amended to correct the section title citation by removing
the words "Failure to Attend Hearing and" and replacing with the word "Proceedings."
Section 155.37(a)(1) is amended by changing the citation to §155.29 (relating
to Pleadings) to the citation §155.30 (relating to Motions).
Cathleen Parsley, General Counsel, has determined that for the first five-year
period the amended rules are in effect there will be no fiscal implications
for state or local government as a result of enforcing or administering them.
Cathleen Parsley also has determined that for the first five-year period
the amended rules are in effect the public benefit anticipated as a result
of the rules will be to ensure more efficient and fair procedures for participants
in contested case hearings. There will be no effect on small businesses as
a result of enforcing the rules. There is no anticipated economic cost to
individuals who are required to comply with the proposed rules.
Written comments must be submitted within 30 days after publication of
the proposed amendments in the
Texas Register
to
Debra Anderson, Paralegal, State Office of Administrative Hearings, P.O. Box
13025, Austin, Texas 78711-3025, or by e:Mail at debra.anderson@soah.state.tx.us.,
or by facsimile to (512) 463-1576.
The amended rules are proposed under Government Code, Chapter
2003, §2003.050, which authorizes the State Office of Administrative
Hearings to conduct contested case hearings and requires adoption of procedural
rules for hearings, and Government Code, Chapter 2001, §2001.004, which
requires agencies to adopt rules of practice setting forth the nature and
requirements of formal and informal procedures.
The provisions to which the proposed amendments relate affect Government
Code, Chapters 2001 and 2003.
§155.1.Purpose and Scope.
(a)
Unless otherwise provided by statute or by the provisions
of this chapter, this chapter will govern the processes followed by the State
Office of Administrative Hearings (SOAH) in handling all matters referred
to SOAH, including contested cases under the Administrative Procedure Act
(APA), Tex. Gov't Code, Chapter 2001. Administrative License Suspension cases
initiated by the Department of Public Safety are governed by Chapter 159 of
this title (relating to Rules of Procedure for Administrative License Suspension
Hearings). Arbitration procedures for certain enforcement actions of the Department
of
Aging and Disability
[
(b) - (c)
(No change.)
§155.5.Definitions.
The following words and terms, when used in this chapter, shall have
the following meanings, unless the context clearly indicates otherwise.
(1) - (3)
(No change.)
(4)
Arbitration--A form of ADR, governed by an agreement between
the parties or special rules or statutes providing for the process, in which
a third-party neutral issues a decision after a streamlined and simplified
hearing. Arbitrations can be binding or non-binding, depending on the agreement,
statutes, or rules. (See Chapter 163 of this title (relating to Arbitration
Procedures for Certain Enforcement Actions of the Department of
Aging
and Disability
[
(5) - (19)
(No change.)
§155.19.Computation of Time.
(a) - (b)
(No change.)
(c)
When by these rules or judge order an act is required or
allowed to be done at or within a specified time, the judge may, for cause
shown, order the period enlarged if application
therefor
[
§155.30.Motions.
(a) - (f)
(No change.)
(g)
Motions to reopen the record under §155.15(a)(4) of
this title (relating to Powers and Duties of Judges), to set aside a default
under §155.55(e) of this title (relating to [
§155.37.Settlement Conferences.
(a)
On party request or in the judge's discretion, the judge
may order that a mediated settlement conference (MSC) be held.
(1)
Parties may object to the proposed ADR process by written
response in the same manner as to other motions (
See
§155.30
[
(2) - (7)
(No change.)
(b) - (c)
(No change.)
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 March 28, 2006.
TRD-200601862
Cathleen Parsley
General Counsel
State Office of Administrative Hearings
Earliest possible date of adoption: May 14, 2006
For further information, please call: (512) 475-4931
1 TAC §§159.1, 159.3 - 159.5, 159.7, 159.9, 159.11, 159.13, 159.15, 159.17, 159.19, 159.21, 159.23, 159.25, 159.27, 159.29, 159.31, 159.33
The State Office of Administrative Hearings (SOAH) proposes
new §§159.5, 159.7, 159.9, 159.11, 159.13, 159.15, 159.17, 159.19,
159.21, 159.23, 159.25, 159.27, 159.29, 159.31, and 159.33 and amendments
to §§159.1, 159.3, and 159.4 concerning Administrative License Suspension
Hearings, commonly known as the Administrative License Revocation (ALR) Program.
The main reason for proposing the new sections is basically to replace
and renumber for organizational purposes outdated sections that are being
concurrently proposed for repeal. Specifically, each new section is being
proposed for the following reasons: New §159.5 (concerning Motion to
Withdraw) is proposed to address the procedures an attorney must follow when
withdrawing from representing a defendant; new §159.7 (concerning Waiver
or Dismissal) is proposed to provide procedures for requesting a waiver of
a request for hearing and what procedures to follow for rescission of a notice
of suspension; new §159.9 (concerning Scheduling and Notice of Hearings)
is proposed to provide procedures to follow for scheduling and notices of
hearings; new §159.11 (concerning Continuances) is proposed to provide
procedures to follow regarding the way continuances are handled; new §159.13
(concerning General Requests for Relief) is proposed to provide procedures
for filing general requests for relief that require an interim order; new §159.15
(concerning Prehearing Discovery) is proposed to provide procedures to follow
regarding prehearing discovery; new §159.17 (concerning Request for Appearance
of Breath Test Operator and Technical Supervisor) is proposed to provide procedures
for requesting the appearance of the breath test operator and/or the technical
supervisor, eliminate the requirement that they must appear in person at the
hearing, and, instead, allow them to appear by telephone; new §159.19
(concerning Subpoenas), provides two methods for compelling a peace officer's
appearance. If the officer is to testify by telephone, an attorney may issue
the subpoena and is required to provide the witness with a $10 witness fee
check. However, no mileage reimbursement is required. If a party seeks to
compel the officer's in-person appearance, an administrative law judge must
issue the subpoena, and the same witness fee check must be provided to the
witness. In addition, a mileage fee check based on the state mileage guide
is required. The state mileage rate is currently $0.445 a mile. Previously,
the mileage fee for a witness who appeared in person was $0.10 a mile if the
witness had to travel more than ten miles. If a witness had to travel less
than ten miles, no mileage fee check was required; new §159.21 (concerning
Hearing) is proposed to provide procedures for the way hearings are conducted
at SOAH; new §159.23 (concerning Participation by Telephone or Videoconferencing)
is proposed to provide procedures to come into compliance with the way telephone
appearances are handled at SOAH and to add videoconferencing as the technologically
advanced alternative for appearing at hearings; new §159.25 (concerning
Failure to Attend Hearing and Default) is proposed to provide procedures for
the way defaults are handled; new §159.27 (concerning Hearing Disposition)
is proposed to provide procedures to require that the facts are proven by
a preponderance of the evidence as specified in the Tex. Trans. Code Ann.;
new §159.29 (concerning Decision of the Administrative Law Judge) is
proposed to provide information on what is required of the judge upon conclusion
of the hearing, and to provide that the decision is appealable; new §159.31
(concerning Appeal of Judge's Decision) is proposed to provide procedures
for appealing a judge's decision; and new §159.33 (concerning Other SOAH
Rules of Procedure) is proposed to provide information regarding other SOAH
procedures that may apply to contested cases under this chapter.
The reasons SOAH is proposing amendments to certain sections are as follows: §159.1
(concerning Scope) is proposed to provide statutory citations that apply to
that section; §159.3 (concerning Definitions) is proposed to remove unnecessary
definitions and update the meanings in others, and to provide the current
statutory citations that apply to that section; §159.4 (concerning Computation
of Time) is proposed to remove the words "the Office" and to replace those
words with "SOAH;" to remove the acronym "ALJ" and replace it with the words
"a judge;" and to make minor typographical corrections.
Cathleen Parsley, General Counsel, has determined that for the first five-year
period that the amendments are in effect, there will be no fiscal implications
for state government as a result of the amendments. The change in the mileage
fee could impact local governments. The increased mileage will assist local
governments by defraying the travel costs of peace officers who are compelled
to testify at hearings. Defendants in administrative license revocations would
bear the increased cost of paying mileage for witnesses who appeared in person.
Additionally, local governments could also be positively impacted because
the increased use of telephonic testimony would reduce the amount of on-duty
time officers would spend traveling to and from hearings and waiting for cases
to be called. SOAH does not, however, have the means to quantify actual cost
savings that may result from the revised rule.
Cathleen Parsley also has determined that for each year of the first five
years the amendments are in effect, the public benefit anticipated as a result
will be more efficient administration of the Administrative License Suspension
Hearings or ALR Program. There will be no effect on small businesses.
Comments on the proposed new sections and proposed amendments must be submitted
within 30 days after publication of the proposed sections in the
Texas Register
to Debra Anderson, Paralegal, State Office of Administrative
Hearings, P. O. Box 13025, Austin, Texas 78711-3025 or by e:Mail to debra.anderson@soah.state.tx.us
or by facsimile to (512) 463-1576.
The amendments are proposed under Transportation Code §§522.105,
524.002 and 724.003 which authorize SOAH to promulgate rules for the administration
of Chapters 522, 524 and 724 of the Transportation Code.
The following statutes are affected by the proposed amendments: Transportation
Code, Chapters 522, 524 and 724; Government Code, Chapters 2001 and 2003;
and Penal Code, Chapter 49.
§159.1.Scope.
(a)
This chapter applies to contested hearings
before
SOAH
concerning administrative suspension
, denial, or disqualification
of drivers' licenses
under the Administrative License Revocation
(ALR) Program governed by the Tex. Trans. Code Ann., Chapters 522, 524, and
724.
[
(b)
(No change.)
(c)
These rules shall supplement the procedures required by
law, but to the extent they conflict with
Tex. Gov't Code Ann., Chapter
2001,
[
§159.3.Definitions.
(a)
In this chapter, the following terms have the meanings
indicated:
(1)
Adult--An individual twenty-one years of age or older.
[
(2)
ALR suspension--An administrative driver's license
disqualification, suspension, or denial under the ALR Program which is the
subject of this chapter.
[
(3)
Alcohol concentration--Has the meaning stated in Tex.
Pen. Code Ann. §49.01.
[
(4)
Alcohol-related or drug-related enforcement contact--Has
the meaning stated in Tex. Trans. Code Ann. §524.001.
[
[
[
[
(5)
Certified Breath Test Technical Supervisor--A person
who has been certified by DPS to maintain and direct the operation of a breath
test instrument used to analyze breath specimens of persons suspected of driving
while intoxicated.
[
[
[
[
(6)
Contested case--A proceeding brought under Tex. Trans.
Code Ann., Chapter 522, Subchapter I; Chapter 524, Subchapter D; or Chapter
724, Subchapter D.
[
(7)
Defendant--One who holds a license as defined in Tex.
Trans. Code Ann. Chapter 521 or an unlicensed driver whose legal rights, duties,
statutory entitlement, or privileges may be affected by the outcome of a contested
case under this chapter.
[
(8)
Denial--The non-issuance of a license or permit, and
loss of the privilege to obtain a license or permit.
[
[
[
(9)
DPS--The Department of Public Safety.
[
(10)
Driver--A person who drives or is in actual physical
control of a motor vehicle.
[
[
[
[
[
(11)
Final Decision--The decision issued by a judge who
hears the contested case or another judge who reviewed the record in its entirety
and who is authorized under appropriate law to issue a final decision in an
ALR case.
[
(12)
Intoxicated--Has the meaning state in Tex. Pen. Code
Ann. §49.01(2).
[
(13)
Minor--An individual under twenty-one years of age.
[
(14)
Nonresident--A person who is not a resident of this
state.
[
(15)
Operate--To drive or be in actual physical control
of a motor vehicle.
[
(16)
Peace Officer--A person elected, employed, or appointed
as a peace officer under Tex. Code Crim. Proc. Ann. §2.12 or other law.
[
(17)
Public place--Has the meaning stated in Tex. Pen.
Code Ann. §1.07 and Tex. Trans. Code Ann. §524.001.
[
(18)
SOAH--The State Office of Administrative Hearings.
[
(19)
Test--Has the meaning stated in Tex. Trans. Code
Ann. §522.101(b) and §724.011.
[
[
[
[
[
[
[
[
[
[
[
[
(b)
The following terms have the meaning set out in
§155.5
of this title (relating to Definitions):
[
(1)
Administrative Law Judge or judge;
[
(2)
APA;
[
(3)
Authorized representative;
[
(4)
Law;
[
(5)
Party;
[
(6)
Person.
§159.4.Computation of Time.
In computing time periods prescribed by this chapter or by
a judge's
[
§159.5.Motion to Withdraw.
(a)
An attorney may withdraw from representing a defendant
only upon written motion for good cause shown. If another attorney is to be
substituted as attorney for the defendant, the motion shall state the attorney's
name, address, telephone number, and telecopier number and state that the
attorney approves the substitution.
(b)
If the defendant has no substitute attorney, the withdrawing
attorney must include the defendant's last known address and a statement indicating
whether the defendant consents to the withdrawal.
(c)
If defendant does not consent to the withdrawal, the attorney
must affirm that the defendant has been informed of the right to object to
the motion.
(d)
If the motion to withdraw is granted, the withdrawing attorney
shall immediately notify the defendant in writing of any additional settings
or deadlines of which the attorney has knowledge at the time of the withdrawal
and has not already notified the defendant.
§159.7.Waiver or Dismissal.
(a)
Waiver of Request for Hearing. The defendant may waive
the request for hearing at any time before the administrative order is final.
If the defendant requests a waiver after the notice of hearing is issued,
the judge will enter an order accepting the waiver.
(b)
Rescission of Notice of Suspension. If, after issuing a
notice of hearing, DPS rescinds a notice of suspension, it shall immediately
inform SOAH and the defendant of the rescission. SOAH may, on its own motion,
dismiss any case from its docket once the notice of suspension has been rescinded.
§159.9.Scheduling and Notice of Hearings.
(a)
On receipt of a timely request for hearing, DPS shall schedule
a hearing to be conducted by a SOAH judge.
(b)
The location of the hearing will be set in accordance with
the requirements stated in Tex. Trans. Code Ann. §524.034 and §724.041.
SOAH or DPS may change the hearing site upon agreement of all parties.
(c)
With the consent of the parties, the hearing may be conducted
by telephone conference call. Once DPS issues the notice of hearing scheduling
the hearing by telephone conference, the hearing may be removed from the telephone
hearing docket only upon timely request pursuant to §159.13 of this title
(relating to Continuances) or by agreement of the parties and with the consent
of SOAH.
(d)
It is a rebuttable presumption that DPS mailed the notice
to the defendant on the same date as the date listed in the notice of hearing.
§159.11.General Requests for Relief.
After a hearing has been scheduled to be heard by SOAH, any party making
a request that requires an interim order must do so in writing to SOAH, with
a copy to the opposing party. Except for a request for subpoena, the request
must contain a certificate of service and a certificate of conference stating
whether the opposing party has agreed to the request. Such written requests
must be filed at least five calendar days prior to the scheduled hearing date,
unless another time limit is specified in these rules or unavoidable circumstances
prevent compliance with such time limits. A party claiming unavoidable circumstances
must describe those circumstances in the written request.
§159.13.Continuances.
(a)
Requests for continuance will be considered in accordance
with the provisions of Tex. Trans. Code Ann. §§524.032, 524.039,
and §724.041(g). DPS shall immediately notify SOAH of a continuance request
under Tex. Trans. Code Ann. §524.032(b).
(b)
A judge may grant a continuance if a subpoenaed witness
is unavailable for the hearing.
(c)
The granting of continuances shall be in the sound discretion
of the judge, provided however, that the judge shall expedite the hearings
whenever possible. A party requesting a continuance shall supply three dates
on which the parties would be available for rescheduling of the hearing. The
judge will consider these dates in resetting the case. Failure to include
a certificate of service, a certificate of conference, and three alternative
dates may result in denial of the continuance request or subsequent continuance
requests in the same case.
(d)
With the exception of a hearing that is rescheduled in
accordance with Tex. Trans. Code Ann. §524.032(b), no party is excused
from appearing at a hearing until notified by SOAH that a motion for continuance
has been granted.
§159.15.Prehearing Discovery.
(a)
A defendant shall be allowed to obtain copies of the following
documents if they are contained in DPS's ALR file:
(1)
police reports;
(2)
any statutory warning form;
(3)
any notice of suspension;
(4)
any other document or record DPS intends to offer into
evidence at the hearing.
(b)
DPS shall be allowed to obtain copies of any non-privileged,
relevant documents in the defendant's possession.
(c)
All requests for discovery must be in writing and served
upon the other party by one of the means described in 37 TAC §17.16(a)
(relating to Service on Department of Certain Items Required to be Served
on, Mailed to, or Filed with the Department). A discovery request may not
be filed before a hearing request is filed and may be filed no earlier than
the sixth day after the notice of suspension was issued.
(d)
A party must supplement its discovery responses within
five business days following receipt of discoverable documents.
(e)
When one party has failed to timely supplement a proper
discovery request and the other party has proven harm as a result of the failure,
the judge may grant a continuance. In the alternative, the judge may proceed
with the hearing, but no document properly sought and not provided in discovery
will be admissible, nor may it be filed to establish a procedural issue, unless
it was provided to the requestor in accordance with this rule.
(f)
Depositions, interrogatories, and requests for admissions
shall not be permitted.
(g)
In addition to discovery as described in subsection (a)
of this section, if a party believes documents or tangible things from a nonparty
would be relevant and probative to the case, the party may request issuance
of a subpoena duces tecum pursuant to §159.19 of this title (relating
to Subpoenas) to have the documents or tangible things produced at the hearing.
If a person subpoenaed under this subsection does not produce the subpoenaed
documents or tangible things, the judge may grant a continuance to allow for
enforcement of the subpoena. If special equipment will be required in order
to offer such documents or tangible things, the party seeking their admission
shall be required to supply the necessary equipment. The judge may condition
the granting of the subpoena duces tecum upon the advancement by the party
requesting the subpoena of the reasonable costs of reproducing the documents
or tangible things requested.
§159.17.Request for Appearance of Breath Test Operator and Technical Supervisor.
(a)
Upon receipt of timely request for the appearance of the
certified breath test operator who administered the test and obtained the
defendant's specimen to determine the level of alcohol concentration in the
defendant's body and/or the certified breath test technical supervisor, DPS
shall ensure that the requested individuals are available to testify by telephone.
These witnesses will not be required to appear in person for the hearing except
upon a showing to the judge of good cause that clearly demonstrates why an
appearance by telephone would unfairly prejudice a party's rights.
(b)
Testimony by telephone will be subject to the provisions
of §159.23(b) of this title (relating to Participation by Telephone or
Videoconferencing).
§159.19.Subpoenas.
(a)
Scope.
(1)
A subpoena may command a person to give testimony for an
ALR hearing and/or produce designated documents or tangible things in the
actual possession of that person.
(2)
The party who causes a subpoena to issue must take reasonable
steps to avoid imposing undue burden or expense on the person served.
(3)
If a party that requests a subpoena fails to timely appear
at the hearing, any subpoenaed witnesses will be released.
(b)
Distance to comply. A person may not be compelled to appear
in person at a hearing location that is more than 75 miles from that person's
duty station.
(c)
Subpoena form. Subpoenas shall be issued on a form provided
by SOAH that will be made available on SOAH's website at www.soah.state.tx.us.
The form must contain at least the following information:
(1)
the style of the case, including the docket number;
(2)
the name and address of the requested witness;
(3)
the time, date, and location of the scheduled hearing;
(4)
the name, address, and telephone number of the defendant,
or if the defendant is represented, the defendant's representative;
(5)
a description of any documents or items that are being
requested;
(6)
if applicable, a statement of the number of miles that
the witness will travel to the hearing from the witness's place of employment;
and
(7)
if applicable, a statement informing the witness of the
option to appear via telephone as described in subsection (d) of this section.
(d)
Attorney-issued subpoena for appearance via telephone.
If a hearing location has adequate telephone capability, the defendant's or
DPS's attorney, if authorized to practice law in the State of Texas, may issue
up to two subpoenas for witnesses to appear by telephone conference call during
a hearing. One subpoena may be issued to compel the presence of the peace
officer who was primarily responsible for the defendant's stop or initial
detention, and the other may be issued to compel the presence of the peace
officer who was primarily responsible for finding probable cause to arrest
the defendant. If the same officer was primarily responsible for both the
defendant's stop and arrest, the attorney may issue only one subpoena.
(1)
A copy of any subpoena issued pursuant to this section
must be provided to the other party on the same day it is issued.
(2)
A subpoena served by the defendant upon a peace officer
in accordance with this subsection must include a witness fee check or money
order in the amount of $10, which must be tendered to the witness when the
subpoena is served. If the subpoenaed witness does not appear for the hearing
and the hearing is not continued, the person who served the subpoena, not
the judge or SOAH, will be responsible for recovering the witness fee check
from the witness.
(3)
In complying with a subpoena issued under this subsection,
a certified peace officer may choose whether to attend the hearing in person
or participate by telephone. If the peace officer intends to participate by
telephone, the officer must provide to the DPS attorney the telephone number
where he or she may be reached at the time of the hearing. If the peace officer
attends the hearing in person, the Defendant will not be required to provide
a mileage fee check for Defendant.
(4)
If a witness will testify by telephone and documents have
been subpoenaed or a witness has been subpoenaed only to produce documents,
the witness must provide the designated documents to DPS prior to the hearing.
(e)
Subpoena request filed with judge.
(1)
No later than ten days prior to the hearing, a party may
file a subpoena request with SOAH that clearly demonstrates good cause to
compel a witness's appearance in person or by telephone, when:
(A)
a party seeks a peace officer's in-person appearance and
clearly demonstrates that an appearance by telephone would unfairly prejudice
that party;
(B)
a party intends to call more than two peace officers to
testify as witnesses by telephone;
(C)
a party seeks to compel the presence of witnesses who are
not peace officers;
(D)
the physical limitations of a particular site will not
accommodate testimony by telephone; or
(E)
a defendant represents himself or herself.
(2)
In addition to being supported by a statement of good cause
and unfair prejudice, the request must also include the specific issues about
which the witness is to testify. A general statement asserting that the witness
will testify about reasonable suspicion to stop or probable cause to arrest
the defendant will not suffice.
(3)
A subpoena served by the defendant upon a peace officer
in accordance with this subsection must include a witness fee check or money
order in the amount of $10, which must be tendered to the witness when the
subpoena is served. Also, when the witness appears for the hearing, the Defendant
must tender to the witness a check for mileage based on the rate listed in
the state mileage guide at http://ecpa.cpa.state.tx.us/mileage/Mileage.jsp.
(f)
Judge's discretion. The decision to issue a subpoena, as
described in subsection (e) of this section, shall be in the sound discretion
of the judge assigned to the case. The judge shall refuse issuance of a subpoena
if:
(1)
the testimony or documentary evidence is immaterial, irrelevant,
or would be unduly repetitious;
(2)
good cause has not been shown.
(g)
Service upon witness. The party who issues or is granted
a subpoena shall be responsible for having the subpoena served in accordance
with Tex. R. Civ. Proc. §176.5. A subpoena to compel the presence of
a peace officer or to secure documents from that officer may also be served
by accepted alternative methods established by that peace officer's law enforcement
agency, except that a subpoena must be served at least five days before the
scheduled hearing.
(h)
Continuing effect. A properly-issued subpoena is in effect
until the judge releases the witness or until a motion to quash or for protective
order is filed. If a hearing is rescheduled and a subpoena is extended, the
party who subpoenaed the witness shall promptly notify the witness of the
new hearing date unless the judge specifically directs otherwise.
(i)
Motion to quash or for protective order.
(1)
On behalf of a subpoenaed witness, a party may move to
quash a subpoena or for a protective order. The party that moves to quash
a subpoena must serve the motion on the other party at the time the motion
is filed with SOAH.
(2)
A witness need not comply with the part of a subpoena from
which protection is sought unless ordered to do so by the judge.
(3)
A party may seek an order from the judge at any time after
the motion to quash or motion for protective order has been filed.
(4)
In ruling on objections or motions for protection, the
judge must provide a person served with a subpoena an adequate time for compliance,
protection from disclosure of privileged material or information, and protection
from undue burden or expense. The judge also may impose reasonable conditions
on compliance with a subpoena.
§159.21.Hearing.
(a)
Procedures.
(1)
Hearings shall be conducted in accordance with the APA,
Tex. Gov't Code Ann. Chapter 2001, when applicable, and with this chapter,
provided that if there is a conflict between the provisions of the APA and
the provisions of this chapter, this chapter shall govern. If a conflict exists
between the provisions of this chapter and Tex. Trans. Code Ann. Chapters
522, 524, or 724, and the provisions in this chapter cannot be harmonized
with a statute, the applicable statute controls.
(2)
Once the hearing has begun, the parties may be off the
record only when the judge permits. If a discussion off the record is pertinent,
the judge will summarize it for the record.
(3)
In the interest of justice and efficiency, the judge may
question witnesses.
(4)
The judge shall exclude testimony or any evidence which
is irrelevant, immaterial, or unduly repetitious.
(b)
Evidence. Pursuant to Tex. Gov't Code Ann. §2001.081,
the rules of evidence as applied in a non-jury civil case in a district court
of this state shall apply to a contested case.
(c)
Witnesses and affidavits.
(1)
All witnesses shall testify under oath.
(2)
An officer's sworn report of relevant information shall
be admissible as a public record. However, the defendant shall have the right
to subpoena the officer in accordance with §159.19 of this title (relating
to Subpoenas). If the defendant timely subpoenas an officer and the officer
fails to appear without good cause, information obtained from that officer
shall not be admissible.
(3)
All substantive and procedural rights apply to the telephonic
appearance of such witness, subject to the limitations of the physical arrangement
as set out in §159.23(b) of this title (relating to Participation by
Telephone or Videoconferencing).
(d)
Record of hearing.
(1)
The judge shall make an accurate and complete tape recording
of the oral proceedings of the hearing.
(2)
SOAH will maintain a case file that includes the tape recording,
pleadings, evidence, and the judge's decision.
(3)
SOAH will maintain case files in accordance with the terms
of its Records Retention Schedule.
(e)
Interpreters.
(1)
Upon the defendant's written request for an interpreter
filed with SOAH and DPS not less than seven days prior to the date of the
hearing, SOAH will provide an interpreter for non-English speaking defendants
or for the defendant's subpoenaed witnesses who appear at the hearing. If
the defendant fails to make a timely request, the judge may continue the hearing
to secure an interpreter, or the defendant may provide an interpreter. However,
the defendant's attorney may not serve as the interpreter.
(2)
Interpreters for deaf or hearing-impaired parties will
be secured by SOAH, subject to the APA §2001.055.
(3)
A defendant who makes a request for an interpreter pursuant
to this subsection and fails to appear may be subject to costs incurred by
SOAH in securing the interpreter or may be required to pay for securing an
interpreter for a subsequent hearing.
§159.23.Participation by Telephone or Videoconferencing.
(a)
Upon the judge's own motion, the judge may conduct all
or part of a hearing on preliminary matters by telephone or videoconferencing
if each participant has an opportunity to participate in and hear the entire
proceeding.
(b)
Procedural Rights and Duties. All substantive and procedural
rights and duties apply to telephone or videoconference hearings, subject
only to the limitations of the physical arrangement. The parties shall notify
SOAH of their telephone numbers for the purpose of their appearance at the
hearing. The parties shall contact their respective witnesses to ensure their
availability at the hearing. When a hearing is held in person, but a subpoenaed
law enforcement officer will testify by phone, the officer will notify DPS,
not the defendant, of a telephone number where he or she may be reached.
(c)
Documentary evidence. To be offered in a telephone or videoconference
hearing, copies of exhibits should be marked and must be filed with SOAH and
all parties no later than two business days prior to the scheduled hearing,
unless otherwise agreed by the parties. If a witness, in preparation for or
during testimony, reviews any document that has not been prefiled and the
opposing party requests an opportunity to review the document, the judge will
go off the record and allow the witness to read the document to the opposing
party.
(d)
Default. For a telephone or videoconference hearing, the
following may be considered a failure to appear and grounds for default, if
the conditions exist for more than ten minutes after the scheduled time for
hearing:
(1)
failure to answer the telephone or videoconferencing line;
(2)
failure to free the line for the proceeding; or
(3)
failure to be ready to proceed with the hearing or a prehearing
or post-hearing conference as scheduled.
§159.25.Failure to Attend Hearing and Default.
(a)
Upon proof by DPS that notice of the hearing on the merits
was mailed to the last known address of defendant, or if defendant has legal
representation, to defendant's counsel, and that notwithstanding such notice,
defendant failed to appear, defendant's right to a hearing on the merits is
waived. A rebuttable presumption that proper notice was given to the defendant
may be established by the introduction of a notice of hearing dated not earlier
than eleven days prior to the hearing date and addressed to defendant's or
defense counsel's last known address, as reflected on defendant's notice of
suspension, request for hearing, driving record, or similar documentation
presented by DPS. Under those circumstances, the judge will proceed in defendant's
absence and enter a default order.
(b)
Within ten business days of the default, the defendant
may file a written motion with SOAH and DPS requesting that the default order
be vacated because the defendant had good cause for failing to appear. The
defendant's written motion must state whether he has conferred with DPS, whether
DPS opposes the motion, and if DPS does oppose the motion, list dates and
times for a hearing on the motion that are agreeable to both parties. Whether
or not DPS opposes the motion, the judge may rule on the motion without setting
a hearing or may set a hearing to consider the motion. A hearing on a motion
to vacate a default order may be held by telephone conference call. If the
judge finds good cause for the defendant's failure to appear, the judge shall
vacate the default order and reset the matter for a contested case hearing.
§159.27.Hearing Disposition.
(a)
If the judge finds that DPS proved the requisite facts
as specified in Tex. Trans. Code Ann. §§522.105, 524.035, or §724.042
by a preponderance of the evidence, the judge shall grant DPS's petition.
(b)
If the judge finds DPS did not prove all of the requisite
facts by a preponderance of the evidence, the judge shall deny DPS's petition,
and DPS shall not be authorized to suspend or deny defendant's license or
disqualify defendant from receiving a license for the conduct at issue.
§159.29.Decision of the Administrative Law Judge.
(a)
Upon conclusion of the hearing, the judge shall issue a
written decision that includes findings of fact and conclusions of law and
advises parties of their rights to appeal.
(b)
The decision of the judge is final and appealable. No party
shall file a motion for rehearing with SOAH.
§159.31.Appeal of Judge's Decision.
(a)
The record on appeal shall consist of the following:
(1)
the first file-marked or stamped copy of all parties' motions
or other pleadings;
(2)
all written orders or decisions issued by the judge and
any evidence of transmittal to the parties;
(3)
all exhibits admitted into evidence;
(4)
all exhibits not admitted into evidence, but made a part
of the record by a party as an offer of proof or bill of exceptions; and
(5)
a transcription of the proceedings electronically recorded
by SOAH.
(b)
A person who appeals a suspension may obtain a transcript
of the administrative hearing by sending a written request to SOAH within
ten days of filing the appeal and paying the applicable fees. The fees shall
not exceed the actual cost of preparing or copying the transcript, and upon
receipt of the fees, SOAH shall promptly furnish the reviewing court and both
parties a certified copy of the record. The transcription of the electronic
recording made by SOAH constitutes the official record for appellate purposes.
For three years after notice of an appeal is filed, SOAH will maintain the
file and original recording of proceedings. A copy of the file and recording
will be available for review by the parties or a reviewing court, if needed.
(c)
If a case is remanded for taking of additional evidence,
the appellant must file with SOAH, within ten days of the signing of the reviewing
court's remand order, a request for relief, including setting a hearing on
remand. The request must include a copy of the remand order and if a hearing
is requested, an estimate of the time required to present the additional evidence.
(d)
A remand under this section does not stay the suspension
of a driver's license.
§159.33.Other SOAH Rules of Procedure.
Other SOAH rules of procedure found at Chapters 155, 157 and 161 of
this title (relating to Rules of Procedure, Temporary Administrative Law Judges,
and Requests for Records) may apply in contested cases under this chapter
unless there are specific applicable procedures set out in this chapter. The
sections that specifically apply include the following:
(1)
§155.15 of this title (relating to Powers and Duties
of Judges);
(2)
§155.17 of this title (relating to Assignment of Judges
to Cases);
(3)
§155.21 of this title (relating to Representation
of Parties);
(4)
§155.31 of this title (relating to Discovery), specifically
subsections (l) and (m);
(5)
§155.39 of this title (relating to Stipulations);
(6)
§155.41 of this title (relating to Procedure at Hearing);
(7)
§155.49 of this title (relating to Conduct and Decorum);
(8)
§157.1 of this title (relating to Temporary Administrative
Law Judge); and
(9)
§161.1 of this title (relating to Charges for Copies
of Public Records).
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 March 28, 2006.
TRD-200601864
Cathleen Parsley
General Counsel
State Office of Administrative Hearings
Earliest possible date of adoption: May 14, 2006
For further information, please call: (512) 475-4931
1 TAC §§159.5, 159.7, 159.9, 159.11, 159.13, 159.15, 159.17, 159.19, 159.21, 159.23, 159.25, 159.27, 159.29, 159.31, 159.33, 159.35, 159.37, 159.39, 159.41
(Editor's note: The text of the following sections proposed for
repeal will not be published. The sections may be examined in the State Office
of Administrative Hearings or in the Texas Register office, Room 245, James
Earl Rudder Building, 1019 Brazos Street, Austin.)
The State Office of Administrative Hearings (SOAH)
proposes to repeal §§159.5, 159.7, 159.9, 159.11, 159.13, 159.15,
159.17, 159.19, 159.21, 159.23, 159.25, 159.27, 159.29, 159.31, 159.33, 159.35,
159.37, 159.39, and 159.41.
The repeal of some of these sections will serve to remove outdated rules
no longer necessary in the Administrative License Revocation process, and
also remove some existing rules to allow the simultaneous adoption of new
rules providing more uniform procedure, which are being concurrently proposed.
Cathleen Parsley, General Counsel, has determined that for the first five-year
period the repeals are in effect, there will be no fiscal implications for
state or local government as a result of enforcing or administering the repeals.
Cathleen Parsley also has determined that for the first five-year period
the repeals are in effect, the public benefit anticipated as a result of the
repeals will be to ensure more uniform and detailed guidelines for hearing
processes in the many Administrative License Revocation cases referred to
the State Office of Administrative Hearings by the Texas Department of Public
Safety. There will be no effect on small businesses as a result of enforcing
the repeals. There is no anticipated economic cost to individuals who are
required to comply with the proposed repeals.
Written comments on the proposed repeals must be submitted within 30 days
after publication of the proposed sections in the
Texas Register
to Debra Anderson, Paralegal, State Office of Administrative
Hearings, to P. O. Box 13025, Austin, Texas 78711-3025, by e:Mail at: debra.anderson@soah.state.tx.us,
or by facsimile to (512) 463-1576.
The repeals are proposed under Texas Transportation Code §§522.105,
524.002 and 724.003 which authorize SOAH to promulgate rules for the administration
of Chapters 522, 524 and 724 of the Texas Transportation Code.
The following statutes are affected by the proposed amendments: Texas Transportation
Code, Chapters 522, 524 and 724; Texas Government Code Chapters 2001 and 2003;
and Texas Penal Code Chapter 49.
§159.5.Notice of Suspension.
§159.7.Request for Hearing.
§159.9.Scheduling of Hearings.
§159.11.Continuances.
§159.13.Prehearing Discovery.
§159.15.Request for Appearance of Department's Witnesses.
§159.17.Request for Subpoenas.
§159.19.Issues.
§159.21.Issues in Cases Involving Commercial Drivers' Licenses.
§159.23.Hearing.
§159.25.Telephone Hearings.
§159.27.Failure to Attend Hearing and Default.
§159.29.Hearing Disposition.
§159.31.Decision of the Administrative Law Judge.
§159.33.Effective Date of Suspensions.
§159.35.Proceedings Open to the Public.
§159.37.Appeal of Judge's Decision.
§159.39.Stay of Suspension.
§159.41.Other Office Rules of Procedure.
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 March 28, 2006.
TRD-200601863
Cathleen Parsley
General Counsel
State Office of Administrative Hearings
Earliest possible date of adoption: May 14, 2006
For further information, please call: (512) 475-4931
1 TAC §161.1
The State Office of Administrative Hearings (SOAH) proposes
amendments to §161.1, concerning Charges for Copies of Public Records.
The reason for the amendments is to correct the reference to the "General
Services Commission" to reference its current title of "Texas Building and
Procurement Commission," and to correct the reference to the Commission's
section citation from "§§111.61 - 111.70 of this title (relating
to Cost of Copies of Open Records)" to "§§111.61 - 111.71 of this
title (relating to Cost of Copies of Public Information)."
Cathleen Parsley, General Counsel, has determined that for the first five-year
period the amended rules are in effect there will be no fiscal implications
for state or local government as a result of enforcing or administering them.
Cathleen Parsley also has determined that for the first five-year period
the amended rules are in effect the public benefit anticipated as a result
of the rules will be to ensure more efficient and fair procedures for participants
in contested case hearings. There will be no effect on small businesses as
a result of enforcing the rules. There is no anticipated economic cost to
individuals who are required to comply with the proposed rules.
Written comments must be submitted within 30 days after publication of
the proposed amendments in the
Texas Register
to
Debra Anderson, Paralegal, State Office of Administrative Hearings, P.O. Box
13025, Austin, Texas 78711-3025, or by e:Mail at debra.anderson@soah.state.tx.us.,
or by facsimile to (512) 463-1576.
The amended rules are proposed under Government Code, Chapter
2003, §2003.050, which authorizes the State Office of Administrative
Hearings to conduct contested case hearings and requires adoption of procedural
rules for hearings, and Government Code, Chapter 2001, §2001.004, which
requires agencies to adopt rules of practice setting forth the nature and
requirements of formal and informal procedures.
The provisions to which the proposed amendments relate affect Government
Code, Chapters 2001 and 2003.
§161.1.Charges for Copies of Public Records.
(a)
The charge to any person requesting photocopied reproductions
of any readily available record of the State Office of Administrative Hearings
will be the charges established by the
Texas Building and Procurement
[
(b)
(No change.)
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 March 28, 2006.
TRD-200601865
Cathleen Parsley
General Counsel
State Office of Administrative Hearings
Earliest possible date of adoption: May 14, 2006
For further information, please call: (512) 475-4931
Chapter 251.
REGIONAL PLANS--STANDARDS
1 TAC §251.6
The Commission on State Emergency Communications (CSEC) proposes
amendments to §251.6, concerning guidelines for submission requests from
regional planning commissions on strategic plans, amendments and allocation
of funds.
The amendments are proposed as part of Rule Review of Chapter 251 pursuant
to Texas Government Code, §2001.039. The rule continues to be essential
to the CSEC's operations and per statutory authority.
The proposed changes to the rule include: alignment with current CSEC rule
structure; alignment with the current strategic plan funding levels of priority;
deletion of duplication of information provided in Program Policy Statement
(PPS-008), Plan Amendments; and, revised instructions and funding parameters
for pagers and generators. The TARC 911 Coordinators' Subcommittee formally
requested that CSEC review and revise the requirements for funding caps for
the purchase of generators. Representatives of the TARC subcommittee worked
closely with CSEC staff to research and develop the proposed changes to the
rule. TARC concurs with the proposed changes.
Paul Mallett, Executive Director, has determined that for the first five-year
period the amendments are in effect there will be no fiscal implications for
state or local government as a result of enforcing or administering the amended
section.
Mr. Mallett also has determined that for each year of the first five years
the amendments are in effect, the public benefit anticipated as a result of
enforcing the amended section will be improved system for funds allocation
and implementation levels for the 9-1-1 program statewide. No historical data
is available; however, there appears to be no direct impact on small or large
businesses. There is no anticipated economic cost to persons who are required
to comply with the amendments as proposed. There is no anticipated local employment
impact as a result of enforcing the amended section.
Comments on the amendments may be submitted in writing within 30 days after
publication of the proposal in the
Texas Register
to Paul Mallett, Executive Director, Commission on State Emergency
Communications, 333 Guadalupe Street, Suite 2-212, Austin, Texas 78701-3942.
The amendments are proposed pursuant to the Texas Health and
Safety Code, Chapter 771, §§771.051, 771.071, 771.0711, 771.072,
and 771.075; and Texas Administrative Code, Title 1, Part 12, Chapter 251,
Regional Plan Standards, which provide the Commission on State Emergency Communications
with the authority to plan, develop, fund, and provide provisions for the
enhancement of effective and efficient 9-1-1 service.
No other code, statute, or article is affected by the amendments.
§251.6.Guidelines for Strategic Plans, Amendments, and Revenue Allocation.
(a)
Purpose. The
Commission on State Emergency Communications
(Commission) establishes
[
[(b)
Background. As authorized by Chapter
771 of the Texas Health and Safety Code, the Commission on State Emergency
Communications (Commission) may impose 9-1-1 emergency service fees and equalization
surcharges to support the planning, development, and provision of 9-1-1 service
throughout the State of Texas. In accordance with Section 771.055 of the above
chapter, such service implementation shall be consistent with regional plans
developed by regional planning commissions (RPC). These regional plans must
meet standards established by the Commission and "...include a description
of how money allocated to the region under this chapter is to be allocated
in the region." Section 771.057 addresses amendments to regional plans and
indicates that such amendments may be adopted in accordance with procedure
established by the Commission.]
(b)
[
(c)
[
[(1)
Level I: The equipment, network, and
database equipment and/or services that provide the essential elements of
9-1-1 service, including the maintenance and replacement of equipment.]
[(A)
Network;]
[(B)
Wireless Phase I;]
[(C)
Database;]
[(D)
Equipment Lease;]
[(E)
Equipment Purchase;]
[(F)
Language Line; and]
[(G)
Equipment Maintenance.]
[(2)
Level II: The activities, equipment,
and/or services that directly support and enhance 9-1-1 call delivery and
data maintenance for the level of service provided to the region. ]
[(A)
Database Maintenance;]
[(B)
MIS;]
[(C)
Mapped ALI;]
[(D)
PSAP Room Prep;]
[(E)
PSAP Training;]
[(F)
Public Education; and ]
[(G)
Wireless Phase II.]
[(3)
Level III: The activities, equipment,
and/or services that provide auxiliary enhancements to the delivery of 9-1-1
calls and the level of service provided to the region.]
[(A)
Network Diversity;]
[(B)
Training Positions;]
[(C)
Emergency Power;]
[(D)
Recorders;]
[(E)
Pagers;]
[(F)
Ancillary Maintenance & Repair; and]
[(G)
Other.]
[(4)
Level IV: Use of Revenue in Certain Counties.
The activities, equipment, and/or services that provide auxiliary enhancements
to the 9-1-1 system of a county subject to Health and Safety Code, Chapter
771, with a population over 700,000, or the county that has the highest population
within an RPC participating in the Commission program to include, but not
limited to:]
[(A)
Design of a 9-1-1 System;]
[(B)
Purchase of Equipment;]
[(C)
Maintenance of Equipment; and]
[(D)
Personnel.]
[
(1)
Level I: The equipment, network, and database equipment
and/or services that provide the essential elements of 9-1-1 service, including
the maintenance and replacement of equipment.
(A)
Network;
(B)
Wireless;
(C)
Database;
(D)
Equipment Lease;
(E)
Language Line; and
(F)
Equipment Maintenance.
(2)
Level II: The activities, equipment, and/or services that
directly support and enhance 9-1-1 call delivery and data maintenance for
the level of service provided to the region.
(A)
Database Maintenance;
(B)
MIS;
(C)
Mapped ALI;
(D)
PSAP Room Prep;
(E)
PSAP Training; and
(F)
Public Education.
(3)
Level III: The activities, equipment, and/or services that
provide auxiliary enhancements to the delivery of 9-1-1 calls and the level
of service provided to the region.
(A)
Network Diversity;
(B)
PSAP Supplies; and
(C)
Ancillary Maintenance & Repair.
(4)
Level IV: Use of Revenue in Certain Counties. The activities,
equipment, and/or services that provide
necessary
auxiliary enhancements
to the 9-1-1 system of a county
eligible under Health and Safety Code
section 771.0751 because it has
subject to Health and Safety Code, Chapter
771, with a population over 700,000[
[(A)
Design of a 9-1-1 System;]
[(B)
Purchase of Equipment;]
[(C)
Maintenance of Equipment; and]
[(D)
Personnel.]
(d)
[
(1)
The Commission shall establish the format of
regional
[
(2)
Regional
[
(3)
An RPC shall submit financial reports at least quarterly
on a schedule to be established by the Commission. The financial report shall
identify actual implementation costs by county,
regional
[
(4)
An RPC shall submit performance reports at least quarterly
on a schedule to be established by the Commission. The performance report
shall reflect the progress of implementing the
RPC's regional
[
(e)
[
(1)
An RPC may make changes to its approved regional [
[(A)
Requests for approval of items under
Commission Rule 251.3, Use of Revenue in Certain Counties;]
[(B)
Requests to shift budget authority from
the Administrative budget to the Program budget, and vice versa;]
[(C)
Requests to increase the total percentage
of staff time charged to the 9-1-1 program (FTE), when the increase exceeds
the total amount of time charged for all personnel funded with 9-1-1 funds
in the current approved plan;]
[(D)
Requests to add a call-taking position
at a PSAP when the total number of call-taking positions for the region would
increase;]
[(E)
Requests for exceptions to Commission
policy;]
[(F)
Requests for additional funds; and]
[(G)
As required by other Commission rule,
or upon a request from the Commission.]
(2)
Requests for amendments to the regional plan shall be submitted
in writing to the Commission. The documentation required for changes will
be
submitted
[
(3)
Emergency situations requiring amendments to regional plans
that require additional funding may be presented to the Commission for review
and consideration contingent upon the availability of such funds within
the Program Budget
level priorities
in subsection (c) of this section
[
(f)
[
(1)
Service Fee allocation--Consistent with
Health and
Safety Code
sections 771.056(d)[
(2)
Equalization Surcharge Funds
(A)
Within the context of
Health and Safety Code section
[
(B)
Consistent with this rule, the Commission shall allocate,
by agreement, equalization surcharge funds and service fees to RPCs based
upon
the Commission's
statewide strategic plan
and
contingent
upon
[
(C)
The Commission may allocate equalization surcharge to an
emergency communication district (District) based on District requests and
availability of appropriated funds.
(D)
Equalization surcharge funds shall be allocated first to
[
(E)
If sufficient equalization surcharge funds are not available
to fund all RPC
regional
[
(i)
In reverse order of priority, reducing the number of priority
level components supported with equalization surcharge funds;
and/or
[(ii)
Requesting that regional strategic plans
be adjusted to allow for more implementation time as appropriate; and/or]
(ii)
[
(F)
The Commission may elect to hold a balance of equalization
surcharge funds in reserve for emergencies and other contingencies.
(g)
[
(1)
Paging Systems. Funding for the paging systems may be approved
when such systems are the most effective means of 9-1-1 call delivery [
(2)
Voice Recording Equipment. Voice loggers may be approved
when the primary use of the equipment is in support of the 9-1-1 call-taking
and call-delivery function. Extra capacity on such systems may be used for
other public safety functions (such as dispatch).
(A)
The Commission will normally fund voice recording capability
in a PSAP to record the conversation on 9-1-1 lines and administrative or
10-digit emergency lines in order to also accommodate wireless, telematics,
and Voice over IP 9-1-1 emergency calls.
(B)
The Commission will
normally
[
(C)
The funding of recording devices to transfer information
from another recorder will be approved only upon specific justification of
need.
(D)
The following guidelines will apply to determine the amount
to be funded by the Commission:
(i)
For a 2 position PSAP, the Commission will
fund the actual cost of the recording system not to exceed $15,000
; or
[
(ii)
For PSAPs with 3 positions or more, the Commission
will fund the actual cost of the recording system not to exceed $25,000.
(E)
The Commission will consider funding of recording capabilities
greater than those suggested by the guidelines when sufficient justification
is provided as part of a regional [
(3)
[
(A)
[
(B)
Generators should be considered as auxiliary
emergency power equipment and should directly support an existing (or planned)
9-1-1 system. A generator should provide continuous power to keep 9-1-1 equipment
specific to the PSAP functioning.
[(2)
Each request for UPS must include a worksheet
showing the calculations used to determine the system size and batteries required.
This worksheet must identify all equipment to be powered and the operating
voltage and current drain of each piece of equipment. The request for UPS
must identify the load capacity of the system requested and the length of
time the batteries will operate the PSAP 9-1-1 equipment. The request should
also indicate whether the 9-1-1 equipment has any built-in UPS capability.]
[(3)
The length of time that a UPS battery
will be required to provide emergency power is a major factor in determining
the cost of the UPS system. Each request for UPS must provide information
justifying the size of the batteries requested. Information concerning the
history of power failures at the PSAP location and the average time to restore
power should be obtained from the local power company.]
[(4)
If the history of power failures, or
the expected restoration time, is more than can be economically justified
for UPS batteries, an emergency generator can be considered. Any request for
an emergency generator, in addition to a UPS, shall include a comparison of
the cost of a UPS with sufficient batteries to the cost of the combination
of the UPS and an emergency generator.]
[
(C)
[
(i)
[
(ii)
[
(4)
[
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 3, 2006.
TRD-200601985
Paul Mallett
Executive Director
Commission on State Emergency Communications
Earliest possible date of adoption: May 14, 2006
For further information, please call: (512) 305-6933
Human
] Services are governed
by Chapter 163 of this title (relating to Arbitration Procedures for Certain
Enforcement Actions of the Department of
Aging and Disability
[
Human
] Services).
Human
] Services) for procedural rules specifically
governing the arbitration of certain nursing home enforcement cases referred
by the Department of
Aging and Disability
[
Human
] Services).
therefore
] is made before the expiration of the specified period. In
addition, where good cause is shown for the failure to act within the specified
period, the judge may permit the act to be done after the expiration of the
specified period. The judge may not enlarge the period for taking any action
under the rules relating to reopening the record, §155.15(a)(4) of this
title (relating to Powers and Duties of Judges), to default, §155.55
of this title (relating to [
Failure to Attend Hearing and
] Default
Proceedings
), and to the failure to prosecute, §155.56(a) of this
title (relating to Dismissal Proceedings), except as stated in those rules.
Failure to Attend Hearing
and
] Default
Proceedings
), to set aside a dismissal for failure
to prosecute under §155.56(a) of this title (relating to Dismissal Proceedings),
and for summary disposition under §155.57 (relating to Summary Disposition),
shall be governed by the referenced sections.
§155.29
] of this title
(relating to
Motions
[
Pleadings
]), specifically subsection
(c), which refers to responses to motions generally
[
(d) of that
section (relating to Responses to Motions Generally)
]. A party may also
request review of the case by SOAH's Alternative Dispute Resolution (ADR)
Team Leader or the Team Leader's designee (including ex parte consultation
with each party in confidence). The Team Leader or designee will make a written
recommendation to the judge, which shall also be served on all parties, about
whether the case is appropriate for ADR.
Chapter 159.
RULES OF PROCEDURE FOR ADMINISTRATIVE LICENSE SUSPENSION HEARINGS
before the State Office of Administrative Hearings.
]
the Administrative Procedure Act,
] the provisions
of this chapter shall prevail.
Administrative Law Judge or Judge--An individual appointed by
the Chief Administrative Law Judge of the State Office of Administrative Hearings
under the Texas Government Code, Chapter 2003 and Texas Transportation Code,
Chapters 524 and 724.
]
Adult--An individual 21 years of age
or older.
]
ALR Suspension--Pursuant to Texas
Transportation Code, Chapters 522, 524 or 724 means an administrative driver's
license suspension under the Administrative License Revocation (ALR) Program
which is the subject of this chapter.
]
Alcohol
concentration--As defined in Penal Code §49.01(1) means:
]
(A)
the number of grams of alcohol per 100
milliliters of blood;
]
(B)
the number of grams of alcohol per 210
liters of breath; or
]
(C)
the number of grams of alcohol per 67
milliliters of urine.
]
Alcohol-related or drug-related enforcement
contact--As defined in Texas Transportation Code, §524.001(3) means a
driver's license suspension, disqualification, or prohibition order under
the laws of this state or another state following:
]
(A)
a conviction of an offense prohibiting
the operation of a motor vehicle while intoxicated, while under the influence
of alcohol, or while under the influence of a controlled substance;
]
(B)
a refusal to submit to the taking of a
blood or breath specimen following an arrest for an offense prohibiting the
operation of a motor vehicle while intoxicated, while under the influence
of alcohol, or while under the influence of a controlled substance; or
]
(C)
an analysis of a blood or breath specimen
showing an alcohol concentration of the level specified in §49.01(2)
of the Penal Code, following an arrest for an offense prohibiting the operation
of a motor vehicle while intoxicated.
]
APA--The Texas Administrative Procedure Act,
Texas Government Code, Chapter 2001.
]
Certified Breath Test Technical Supervisor--A
person who has been certified by the department to maintain and direct the
operation of a breath test instrument used to analyze breath specimens of
persons suspected of driving while intoxicated.
]
Child--As
defined in §51.02 of the Texas Family Code, means a person who is:
]
(A)
10 years of age or older and under 17
years of age; or
]
(B)
17 years of age or older and under 18
years of age who is alleged or found to have engaged in delinquent conduct
or conduct indicating a need for supervision as a result of acts committed
before becoming 17 years of age.
]
Commercial Driver's License--As defined in Texas Transportation Code, §522.003(3),
means a license issued to an individual that authorizes the individual to
drive a class of commercial motor vehicle.
]
Commercial Motor Vehicle--As defined
in Texas Transportation Code, §522.003(5), means a motor vehicle or combination
of motor vehicles used to transport passengers or property that:
]
(A)
has a gross combination weight rating
of 26,001 or more pounds including a towed unit with a gross vehicle weight
rating of more than 10,000 pounds;
]
(B)
has a gross vehicle weight rating of 26,001
or more pounds;
]
(C)
is designed to transport 16 or more passengers,
including the driver; or
]
(D)
is transporting hazardous materials and
is required to be placarded under 49 CFR Part 172, Subpart F.
]
Contested Case--A proceeding brought under Texas Transportation
Code, Chapter 522, Subchapter I, Chapter 524, Subchapter D, or Chapter 724,
Subchapter D.
]
Conviction--When involving minors, includes
an adjudication under Title 3 of the Texas Family Code for conduct constituting
an offense under §106.041, Alcoholic Beverage Code or under §§49.04,
49.07, 49.08 of the Penal Code. An order of deferred adjudication received
by a minor for an offense alleged under the aforementioned sections is also
considered a conviction.
]
Defendant--One who holds a license as defined in paragraph (20)
of this subsection and whose legal rights, duties, statutory entitlement,
or privileges may be affected by the outcome of a contested case under this
chapter.
]
Denial--The non-issuance of a license or permit, and loss
of the privilege to obtain a license or permit, as defined in paragraph (20)
of this subsection.
]
Department--The Department of Public Safety.
]
Disqualification--As defined in Texas Transportation Code, §522.003(9),
means a withdrawal of the privilege to drive a commercial motor vehicle and
includes the suspension, cancellation, or revocation of that privilege as
authorized by a state or federal law.
]
Driver--A person who drives or is in actual physical control of a motor vehicle.
]
Final Decision--The decision issued by a Judge who hears the
contested case and who is authorized under Texas Transportation Code, Chapter
522, Subchapter I, Chapter 524, Subchapter D, or Chapter 724, Subchapter D
to issue final decisions in driver's license suspension cases.
]
Intoxicated--Has the
meaning assigned by Penal Code, §49.01(2).
]
(20)
License--A driver's license or other
license or permit as provided in Texas Transportation Code, §521.001(a)(6)
to operate a motor vehicle issued under, or granted by, the laws of this state.
]
(21)
Minor--An individual under 21 years of
age.
]
(22)
Nonresident--A person who is not a resident
of this state.
]
(23)
Office--The State Office of Administrative
Hearings.
]
(24)
Operate--To drive or be in actual physical
control of a motor vehicle.
]
(25)
Peace Officer--As used in Texas Transportation
Code, Chapters 522, 524 and 724, means a person elected, employed, or appointed
as a peace officer under Article 2.12, Code of Criminal Procedure, or other
law. A peace officer may also be referred to as an arresting officer.
]
(26)
Public Place--Any place to which the
public or a substantial group of the public has access and includes, but is
not limited to, streets, highways, and the common areas of schools, hospitals,
apartment houses, office buildings, transport facilities, and shops.
]
(27)
Test--Pursuant to Texas Transportation
Code, Chapter 724, Subchapter B, or Chapter 522, Subchapter I, means the following:
]
(A)
one or more specimens of a person's breath
for the purpose of analysis to determine the alcohol concentration; or
]
(B)
one or more specimens of a person's blood
for the purpose of analysis to determine the alcohol concentration or the
presence in his body of a controlled substance, drug, dangerous drug or other
substance; or
]
(C)
one or more specimens of a person's urine
for the purpose of analysis to determine the alcohol concentration or the
presence in his body of a controlled substance, drug, dangerous drug or other
substance.
]
this section.
]
Authorized
representative--An attorney authorized to practice law in the State of Texas
or, where permitted by applicable law, a person designated by a party to represent
the party;
]
Chief Judge--The Chief Administrative
Law Judge of the Office.
]
Law--State
and federal statutes, regulations, and relevant case law.
]
Party--A person or agency named,
or admitted to participate, in a case before the Office.
]
Person--Any individual, representative,
corporation or other entity, including any public or nonprofit corporation,
or any agency or instrumentality of federal, state, or local government.
]
ALJ
] order, the day of the act, event, or default on which
the designated period of time begins to run is not included. The last day
of the period is included, unless it is a Saturday, a Sunday, an official
state
[
State
] holiday, or another day on which
SOAH
[
the Office
] is closed, in which case the time period will
be deemed to end on the next day that
SOAH
[
the Office
]
is open. When these rules specify a deadline or set a number of days for filing
documents or taking other actions, the computation of time shall be by calendar
days rather than business days, unless otherwise provided in this chapter
or
a judge's
[
ALJ
] order. However, if the period within
which to act is five days or less, the intervening Saturdays, Sundays, and
legal holidays are not counted, unless this chapter or
a judge's
[
ALJ
] order otherwise specifically provides.
Chapter 159.
RULES OF PROCEDURE FOR ADMINISTRATIVE LICENSE SUSPENSION PROCEEDINGS
Chapter 161.
REQUESTS FOR RECORDS
General Services
] Commission
which are
codified
at
1 TAC §§111.61 - 111.71,
[
§§111.61-111.70
] of this title (relating to Cost of Copies of
Public Information
[
Open Records
]) [
(effective April 22, 1994)
].
Part 12.
COMMISSION ON STATE EMERGENCY COMMUNICATIONS
purpose of
] this rule [
is
] to provide [
the structure and
] guidelines for
a regional
planning commission (RPC) to follow in developing or amending its regional
plan and in describing how money allocated by the Commission is to be allocated
in the region
[
regional strategic plans, funding of the plans,
and amendments to the plans
].
(c)
] Definitions. Unless the context
clearly indicates otherwise, terms contained in this rule are defined as shown
in Commission Rule 251.14, General Provisions and Definitions.
(d)
]
Regional
[
Strategic
] Plan
Budgets
[
Levels
]. Regional [
strategic
] plans [
developed in accordance with Chapter 771, along
with the commensurate allocation of the above described funds,
] shall
be
[
reflect implementation
] consistent with the
Administration,
Equipment, and Program Budgets approved by the Commission. The Program Budget
includes the following
[
following
] four major strategic plan
levels (in order of priority): for state appropriations years 2004-2005.
(e)
New Strategic Plan Levels. Regional strategic
plans developed in accordance with Chapter 771, along with the commensurate
allocation of the above described funds, shall reflect implementation consistent
with the following four major strategic plan levels (in order of priority)
beginning state appropriations year 2006.
]
,
] or
is
the county
that has the highest population within an RPC participating in the Commission
program
.
[
to include, but not limited to:
]
(f)
]
Regional
[
Strategic
] Plans. Regional [
strategic
] plans developed in
compliance with Chapter 771
and Commission Rule 251.1
shall include
projected
[
a strategic plan that projects
] financial operating
information
for
at least
the
two
state fiscal
years
following submission of the plan
[
into the future
]; and strategic
planning information
for
at least
the
five
state
fiscal
years
following submission of the plan
[
into
the future
].
strategic
] plans for the sake of identifying overall statewide
requirements in its implementation.
Strategic
] plans shall
be consistent with the four major implementation priority levels identified
above and with all applicable Commission policies and rules.
strategic
] plan priority level and component.
region's strategic
] plan, including the status of equipment, services
and program deliverables, in a format to be determined by the Commission.
(g)
] Amendments to Regional [
Strategic
] Plans.
strategic
] plan to accommodate unanticipated requirements and/or to
prevent disruption of its implementation schedule, contingent upon compliance
with all Commission policies and procedures. [
Examples of occasions when
an amendment must be submitted to the Commission include, but are not limited
to:
]
an amended budget, narrative, related worksheets
and a letter indicating executive approval of the amendment
] according
to Commission policy. The Commission shall take action, no fewer than four
times annually, on any
regional
[
Regional
] plan amendment
request submitted for approval.
as established by the Commission
].
(h)
] Allocation of Revenue.
,
] and 771.078
. The
[
the
] Commission shall allocate, by contract, service fee
revenue to
an RPC
[
RPCs
] contingent on the availability
of appropriated funds.
Section
] 771.056(d), the Commission shall consider any
revenue insufficiencies to represent need for equalization surcharge funding
support.
on
] the availability of appropriated funds over a two-year
period.
eligible
] recipients requiring such funds for administrative budgetary
purposes, followed by
the Program Budget level priorities in subsection
(c) of this section
[
Level I, II, and III activities in that order
].
strategic
] plan and District
requests, funds shall be allocated to provide a consistent level of 9-1-1
service throughout the State of Texas in accordance with the
Program
Budget level priorities in subsection (c) of this section
[
priority
levels described
].
Allocation
[
Such allocation
]
methods may include, but are not limited to, [
one or more of
] the
following:
(iii)
] In order of priority, proportionally
allocating available funds among requesting agencies.
(i)
] Funding Parameters
for
Ancillary Equipment
.
Ancillary Equipment includes
[
The Commission will look favorably on plan amendments for tandem and/or database
service arrangements and ancillary equipment that will improve the effectiveness
and reliability of 9-1-1 call delivery systems. This will include
] the
following when the equipment
supports
[
is for
] 9-1-1
call delivery: surge protection devices,
emergency power equipment
[
uninterrupted power source (UPS), power backup
], voice recorders,
and
paging systems [
for 9-1-1 call delivery, security devices,
and other back-up communication services
].
An RPC
[
Regions
] shall refer to the strategic planning guidelines for instructions
as to the appropriate budget line item to which the costs for purchase and
maintenance of these items should be assigned.
and they do not replace other paging or radio alerting systems. Funding for
paging will be limited to systems, where alternative systems or the systems
now in use cause significant delay in 9-1-1 call delivery and where existing
radio systems can be modified to accommodate paging
]. Funding for pagers
(receivers) will be limited to [
three, providing pagers to only
]
necessary core responders
. The Commission will fund the actual cost of
the pagers not to exceed $450 per pager.
[
within an organization
(e.g., in a 15-member volunteer emergency medical group, only the on-call
ambulance driver and one or two attendants would be furnished pagers).
]
also
]
fund recording capability to record the transfer of an emergency call from
the PSAP first answering the call to the agency that is responsible for providing
the required emergency services.
.
]
strategic
] plan.
(j)
] Emergency Power Equipment.
Each PSAP location should be evaluated by the RPC to determine if
the
[
an
] emergency power system
needs
[
is required
] to
be updated to
insure the ability to answer 9-1-1 calls
in the event that
commercial
[
the standard
] power [
supply
] is interrupted.
An Emergency
[
A PSAP that receives
a relatively small number of emergency calls per day may be able to provide
acceptable service without the availability of ANI or ALI for short periods
of time. If the same PSAP is located in a location that is subject to prolonged
power outages, it may need emergency
] power sources
equipment should
be evaluated and tested on a regular schedule
. Other considerations
include:
(1)
]
An uninterrupted power
source (UPS)
[
Where conditions exist that indicate a need for emergency
power systems to support 9-1-1 call delivery, UPS
] should be considered
as
basic
[
the
] emergency power
equipment
[
system
].
A UPS should provide continuous power to keep essential
9-1-1 system components functioning for a short period of time until generator
or other emergency power equipment become operable, if necessary. A UPS primarily
functions continuously to maintain a clean source of commercial power.
[
Emergency generators (power backup) should be approved only in locations with
a documented history of or potential for extended interruptions of commercial
power supplies. Generally, 9-1-1 funding will not be used to provide both
a generator and UPS. At least 75 percent of the capacity of any UPS system
or generator funded should directly support an existing (or planned) 9-1-1
system.
]
(5)
There may be circumstances that justify
the installation of an emergency generator (backup power), in addition to
an UPS, as the primary system for a PSAP location. In these cases, the request
for the emergency generator must include an explanation and comparison of
the relevant costs.
]
(6)
]
The following guidelines
will apply to determine the amount of generator costs
[
When the
operator of a 9-1-1 PSAP and the providers of emergency services desire to
share the emergency power system funded by the Commission, the following guidelines
will apply to determine the amount
] to be funded by the Commission:
(A)
]
For a 2 position PSAP,
[
When the minimum size of emergency power system that can be purchased
to serve the PSAP provides more capacity than is needed by the PSAP, the other
agency may use the extra capacity and all funding will be provided by
]
the Commission
will fund the actual cost of the generator not to exceed
$25,000
.
(B)
]
For PSAPs with 3 positions
or more,
[
When the PSAP requires a given size of emergency power
system, and the other agency requires additional capacity,
] the Commission
will fund the
actual cost of the generator not to exceed $40,000
[
size of emergency power equipment needed to supply the PSAP alone and the
other agency will fund all additional capacity
].
(7)
] Funding may be approved
by the Commission
for surge protection devices when they are used for
protection of 9-1-1 specific electronic equipment.
A complete evaluation
of grounding at 9-1-1 PSAPs may be funded by the Commission
[
Documented
justification must be provided
].
Part 15.
TEXAS HEALTH AND HUMAN SERVICES COMMISSION