37 TAC §223.2
The Texas Commission on Law Enforcement Officer Standards
and Education adopts new §223.2, concerning an answer required from a
person whose license the executive director proposes to deny, cancel, suspend,
or revoke, with changes to the proposed text as published in the March 24,
2000 issue of the
Texas Register
(25 TexReg
2554). The new section explains the authority the executive director has in
these cases. A licensee must file an answer either consenting to the penalty
recommended by the executive director in his petition or request a contested
case hearing.
Written comments received from Burnet Police Department and Snyder Police
Department expressed support for the proposed rule. Comments received from
an Erath County Sheriff's sergeant requesting clarification of the language
regarding the acknowledgement and answer timeline process. The Erath County
Sheriff sergeant also addressed how a petition is sent to the respondent.
A city marshal of the City of University Park, and Collin County Fire Marshal's
Office also made similar comments. In response the Commission changed the
language in the proposed rule from "An answer must be filed not later than
20 days after the date the petition is received by the respondent" to "An
answer must be filed not later than 20 days after the date the respondent
is provided with notice of the executive director's petition." This change
conforms to the rule within the Texas Rules of Civil Procedure. The sergeant
from Erath County Sheriff's Office also made comment in reference to the executive
director's default judgement against a respondent. Explanation was provided
to the sergeant, and there were no changes made to the rule based on this
comment. The comment from the city marshal of the City of Tenaha challenged
the authority to administer each action in the proposed rule delegated solely
to the executive director. The Commission responded that the rule as proposed
reflects the division of responsibility. The Commission made no change to
the proposed rule based on this comment. The new rule was reviewed by counsel
and is within the agency's authority to adopt.
The new section is adopted under Texas Occupations Code Annotated,
Chapter 1701, §1701.151 which authorizes the Commission to promulgate
rules for the administration of this chapter. The following statute is affected
by this adopted new rule: Texas Occupations Code Annotated, Chapter 1701§1701.151-General
Powers.
§223.2.Answer Required.
(a)
In order to preserve the right to a hearing as described
in §211.15 of this title (relating to License Action), a person whose
license the executive director proposes to deny, cancel, suspend, or revoke
must file an answer either consenting to the penalty recommended by the executive
director in his petition, or requesting a contested case hearing. An answer
must be filed not later than 20 days after the date the respondent is provided
with notice of the executive director's petition. Failure to timely file an
answer may result in the issuance of a default order.
(b)
The answer described in subsection (a) may be in the form
of a general denial as that term is used in the district courts of the State
of Texas.
(c)
If a respondent fails to timely file an answer as required
by subsection (a) of this section, the executive director may recommend to
the commission that it enter a default order against the respondent. The executive
director may support the motion with documentary evidence, including affidavits,
exhibits and pleadings, and oral testimony, as may be appropriate to demonstrate
that the respondent received the petition and failed to timely file an answer.
The commission will consider motions for default orders at its quarterly commission
meetings. If the executive director moves for issuance of a default order
under this section, it is not necessary to set the matter for hearing under §211.9
of this title (relating to Contested Cases and Hearings). The commission may
grant the default order requested by the executive director, or may order
the case referred to SOAH for a contested case hearing.
(d)
If a person timely files an answer as required by subsection
(a) of this section, but fails to appear at the contested case hearing after
receiving timely and adequate notice, the executive director may move for
default judgment against the respondent as provided by SOAH rule, 1 Tex. Admin.
Code §155.55.
(e)
Upon issuance of a default order by the commission, notice
shall be provided to the respondent in accordance with §211.15 (b) of
this title (relating to License Action).
(f)
The effective date of this section is July 19, 2000.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on June 29, 2000.
TRD-200004540
Edward T. Laine
Chief, Professional Standards and Administrative Operations
Texas Commission on Law Enforcement Officer Standards and Education
Effective date: July 19, 2000
Proposal publication date: March 24, 2000
For further information, please call: (512) 936-7700