PART 7. STATE OFFICE OF ADMINISTRATIVE HEARINGS
CHAPTER 159. RULES OF PROCEDURE FOR ADMINISTRATIVE LICENSE SUSPENSION PROCEEDINGS
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, 159.35, 159.37, 159.39, 159.41
The State Office of Administrative Hearings (SOAH) adopts the repeal of §§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, 159.35, 159.37, 159.39, and 159.41. The repeals are adopted without changes to the proposal as published in the July 4, 2008, issue of the Texas Register (33 TexReg 5107).
The existing rules have been developed to provide a uniform set of procedural rules to be followed in administrative license suspension cases at SOAH. Repeal of the existing rules will allow the simultaneous adoption of new rules, which are being concurrently adopted, that remain uniform in application but that are clearer, updated, and easier to use.
Comments to the repeals were received during the comment period of July 4, 2008 through August 4, 2008, and at the public hearings conducted on September 19 and 26, 2008.
Comments: A commenter believes the repeal of §159.11(c) of this title (relating to Continuances) will remove the defendant's opportunity to seek a continuance based on a bona fide medical condition that prevents the defendant or the defendant's attorney from attending the hearing.
SOAH Response: SOAH notes that it is required to follow Texas Transportation Code §524.032(c) which provides for the continuance. SOAH repeals the rule because it was repetitive of the statute.
The repeals are adopted under Texas Government Code, Chapter 2003, which authorizes the State Office of Administrative Hearings to conduct contested case hearings, Texas 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, and §2003.050, which requires SOAH to adopt rules governing the procedures, including discovery procedures, that relate to a hearing conducted by SOAH.
The repeals affect the following statutes: Texas Transportation Code, Chapters 522, 524 and 724; Texas Government Code, Chapters 2001 and 2003; and Texas Penal Code, Chapter 49.
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 December 31, 2008.
TRD-200806731
Kerry D. Sullivan
General Counsel
State Office of Administrative Hearings
Effective date: January 20, 2009
Proposal publication date: July 4, 2008
For further information, please call: (512) 475-4931
SUBCHAPTER A. GENERAL
1 TAC §§159.1, 159.3, 159.5, 159.7
The State Office of Administrative Hearings (SOAH) adopts new §§159.1, 159.3, 159.5, and 159.7, comprising new Subchapter A. The new rules are adopted without changes to the proposal as published in the July 4, 2008, issue of the Texas Register (33 TexReg 5108). These adopted new rules concern the Administrative License Suspension Hearings, commonly known as the Administrative License Revocation (ALR) Program.
New Subchapter A, General, includes §§159.1, Scope; 159.3, Definitions; 159.5, Computation of Time; and 159.7, Other SOAH Rules of Procedure. The new subchapter and sections are adopted to replace outdated sections, update and clarify remaining sections, insert new language where appropriate, and reorganize the chapter for ease of reference and use.
Comments to the new rules were received during the comment period of July 4, 2008 through August 4, 2008, and at the public hearings conducted on September 19 and 26, 2008.
Comments: A commenter said the hearings process works well under current rules and no changes are necessary.
SOAH's response: SOAH agrees that the process works well but believes the amendments are needed to comply with statutory changes and to streamline procedures that unnecessarily consume state resources.
One commenter inquired about the effective date of the newly adopted rules.
SOAH's response: The new rules become effective on the date of their adoption.
A commenter said the new rules will affect breath test technical supervisors who own small businesses, so it is incorrect to state that small businesses will not be affected.
SOAH's response: SOAH notes that the rules make no change to current procedures regarding these businesses.
The new rules are adopted 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 adopted new rules: Texas Transportation Code, Chapters 522, 524 and 724; Texas Government Code, Chapters 2001 and 2003; and Texas Penal Code, Chapter 49.
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 December 31, 2008.
TRD-200806732
Kerry D. Sullivan
General Counsel
State Office of Administrative Hearings
Effective date: January 20, 2009
Proposal publication date: July 4, 2008
For further information, please call: (512) 475-4931
The State Office of Administrative Hearings (SOAH) adopts new §159.51, comprising new Subchapter B. The new rule is adopted without changes to the proposal as published in the July 4, 2008, issue of the Texas Register (33 TexReg 5110). The adopted new rule concerns the Administrative License Suspension Hearings, commonly known as the Administrative License Revocation (ALR) Program.
New Subchapter B, Representation, includes §159.51, Withdrawal of Counsel. The new subchapter and section is adopted to replace outdated sections, update and clarify remaining sections, insert new language where appropriate, and reorganize the chapter for ease of reference and use.
Comments to the new rule were received during the comment period of July 4, 2008 through August 4, 2008, and at the public hearings conducted on September 19 and 26, 2008.
Comments: A commenter asked that the new section specifically list a defendant's failure to pay attorney's fees as good cause for an attorney's withdrawal.
SOAH's response: SOAH believes each case should be addressed individually and will consider each motion to withdraw on its merits.
The new rule is adopted 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 adopted new rule: Texas Transportation Code, Chapters 522, 524 and 724; Texas Government Code, Chapters 2001 and 2003; and Texas Penal Code, Chapter 49.
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 December 31, 2008.
TRD-200806733
Kerry D. Sullivan
General Counsel
State Office of Administrative Hearings
Effective date: January 20, 2009
Proposal publication date: July 4, 2008
For further information, please call: (512) 475-4931
The State Office of Administrative Hearings (SOAH) adopts new §159.101, and §159.103, comprising new Subchapter C. The new rules are adopted with changes to the proposal as published in the July 4, 2008, issue of the Texas Register (33 TexReg 5110). In response to comments, an addition was made to §159.101. To clarify language in §159.103, but not in response to a comment, a repetitive sentence was deleted from subsection (b), a word was changed in subsection (f)(1) and a phrase was added to subsection (i)(4). These adopted new rules concern the Administrative License Suspension Hearings, commonly known as the Administrative License Revocation (ALR) Program.
New Subchapter C, Witnesses and Subpoenas, includes §159.101, Breath Test Operator and Technical Supervisor; and §159.103, Subpoenas. The new subchapter and sections are adopted to replace outdated sections, update and clarify remaining sections, insert new language where appropriate, and reorganize the chapter for ease of reference and use.
Comments to the new rules were received during the comment period of July 4, 2008 through August 4, 2008, and at the public hearings conducted on September 19 and 26, 2008.
Comments: Commenters asked SOAH to require defendants to pay professional fees and travel expenses for a breath test operator or technical supervisor whose appearance is requested pursuant to §159.101 and Texas Transportation Code §524.039. The commenters asserted that failure to establish a mechanism for payment of these fees conflicts with Texas Government Code §2001.103 which states, "Any witness subpoenaed or otherwise compelled to attend a hearing shall receive reimbursement of their costs from the party requesting their presence."
SOAH's response: SOAH agrees that the issue of whether a breath test operator or technical supervisor should receive mileage reimbursement merits consideration but also finds such an addition to the proposed rules would be substantive and require publication and comment. SOAH will consider this comment when next proposing rule amendments.
Commenters think §159.101(a) lacks the clarity of current rules regarding the impact of a breath test operator's or technical supervisor's failure to appear when a defendant has requested their appearance.
SOAH's response: SOAH did not intend to change current procedure and has amended §159.101(a) by adding the last two sentences. The addition reflects the current practice of excluding test results when these witnesses do not appear.
A commenter asked for §159.101(a) to be amended to require all ALR hearings to be conducted by telephone or to remove the requirement for breath test technical supervisors to appear at hearings.
SOAH's response: SOAH believes these changes can only be effected by statute since Texas Transportation Code §524.039(a) requires the technical supervisors to appear when properly requested.
Several commenters said §159.103 will have an adverse effect on public safety because officers will be required to attend hearings rather than work on patrol, more officers will be required to appear for hearings, and law enforcement agencies will be required to pay more overtime for officers who appear at hearings.
SOAH's response: In SOAH's view, the section simply streamlines the procedure for issuing a subpoena; it does not expand the number of witnesses whose appearance may be required at a hearing. The streamlined procedure will conserve state resources.
A commenter stated that officers who testify at ALR hearings pursuant to §159.103 and then testify at criminal trials may be impeached based on prior statements, which will negatively impact prosecutions for driving while intoxicated.
SOAH's response: SOAH believes witnesses should be able to give consistent testimony in different venues.
A commenter asked SOAH not to require officers to produce tangible things as specified in §159.103(a)(1).
SOAH's response: SOAH notes that the proposed rules make no change to the current procedure, and officers will not be requested to bring items that are not in their actual possession.
One commenter asked that the subpoena form mentioned in §159.103(b) include DPS's phone number.
SOAH's response: SOAH has not yet finalized the subpoena forms but agrees the phone number should be included on the form.
Commenters said the proposed subpoena rule conflicts with the Texas Government Code §2001.089 because a showing of good cause is not specifically required before an attorney may issue a subpoena, as authorized in §159.103(b).
SOAH's response: SOAH disagrees with the comment because the rule will allow an attorney to issue a subpoena only for a peace officer who stopped or arrested the defendant. Issues relating to an officer's reasonable suspicion to stop the vehicle or probable cause to arrest the defendant are always relevant to ALR proceedings. Thus, good cause may be inferred based on the officer's determinations regarding these issues. Also, a request for a subpoena will be required if a party seeks to subpoena any other witness and an ALJ will review the request for good cause. Finally, the APA does not require a showing of good cause; instead, Texas Government Code §2001.089(1) requires that, if good cause is shown, the subpoena must be issued.
Similarly, a commenter said that allowing defense attorneys to issue subpoenas will lead to abuse because they will issue subpoenas when an officer's presence is not needed.
SOAH's response: SOAH notes that the section allows issuance of those types of subpoenas that are routinely approved by SOAH ALJs under the current rules. Thus, the new section only authorizes a change in the way subpoenas are processed.
A commenter asked that SOAH require the service of subpoenas ten calendar days or five business before hearing.
SOAH's response: Previously, SOAH had no requirement for service by a specified time prior to a hearing, and §159.103(f)(2) requires service five days prior to the hearing. SOAH believes the five day requirement is reasonable. Section 159.5 of this title (relating to Computation of Time) already provides that if the period within which to perform some action under the rules is five days or less, the intervening Saturdays, Sundays, and legal holidays are not counted unless this chapter or a judge's order otherwise specifically provides. In addition, if an officer is not able to appear, DPS may seek a continuance.
Some defense attorneys asked SOAH to postpone adoption of §159.103(f)(3) to allow more time to study to increased costs defendants will be required to pay for mileage.
SOAH's response: SOAH does not find additional time is required for study of §159.103(f)(3). Defendants will not be required to pay mileage for a witness unless the witness must travel more than 25 miles roundtrip to the hearing. Also, defendants have the ability to control costs by requesting hearings by telephone; no mileage reimbursement is required for witnesses in those hearings. The mileage guide is based on the applicable mileage reimbursement rate as established by the legislature in the travel provisions of the General Appropriations Act and the number of miles traveled. (Texas Government Code §660.042 and §660.043). SOAH believes that reimbursement based on the mileage guide will be a more accurate and equitable way to reimburse witnesses for their mileage costs. In addition, costs to defendants will be reduced by the streamlined subpoena process.
One commenter objected to §159.103(h) which requires the person who requests a continuance to notify subpoenaed witnesses of the new hearing date. The commenter asserted that the Texas Government Code does not allow the shifting of this responsibility to a party who did not subpoena the witnesses.
SOAH's response: SOAH finds no prohibition in current law and considers the rule a fair way to lessen the inconvenience of a party who does not request a continuance.
A commenter believes §159.103(i)(2) will allow DPS to communicate ex parte with an ALJ regarding a motion to quash an attorney-issued subpoena.
SOAH's response: SOAH believes §159.103(i)(2) is limited by the provisions in paragraph (1) of the same subsection that requires a party to serve its motion to quash on the other party. Also, any party filing a motion must comply with §159.205 of this title (relating to General Requests for Relief). That section requires a certificate of conference and service of the motion on the other party.
A commenter stated that requiring a subpoena to be served five calendar days before the hearing will put an unreasonable burden on defendants because an officer could resist service.
SOAH's response: The rules do not change the fact that officers must be served before their appearance is compelled. If a defendant cannot timely serve an officer, the defendant may take advantage of the continuance allowed by Texas Transportation Code §524.032.
A commenter asked SOAH to establish an alternative method for serving peace officers.
SOAH's response: SOAH does not have the authority to order law enforcement agencies to allow alternative service methods.
Another commenter asked for a provision that excludes admission of evidence from subpoenaed civilian witnesses who do not appear for the hearing.
SOAH's response: SOAH notes that when a subpoena has been issued for a civilian witness and the witness does not appear, the presiding judge will rule on admissibility of any evidence related to that witness in accordance with the Texas Rules of Evidence and other applicable law.
A commenter asked SOAH to require DPS to provide a routing slip on the date subpoena is issued.
SOAH's response: The rules include no change from current procedures.
The new rules are adopted 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 adopted new rules: Texas Transportation Code, Chapters 522, 524 and 724; Texas Government Code, Chapters 2001 and 2003; and Texas Penal Code, Chapter 49.
§159.101.Breath Test Operator and Technical Supervisor.
(a) Upon receipt of a 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 appear at the hearing. If the requested witness does not appear without good cause, the results of the test will not be admitted into evidence. If good cause is established for the witness's failure to appear, DPS will be entitled to a continuance.
(b) Requests for witnesses under this section are limited to cases under Texas Transportation Code §522.081(b)(4) and §522.081(d)(3)(C) and Chapter 524.
§159.103.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 or issues a subpoena fails to timely appear at the hearing, any subpoenaed witnesses will be released.
(b) Attorney-issued subpoenas. An attorney who is authorized to practice law in the State of Texas may issue up to two subpoenas for witnesses to appear at 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.
(c) Subpoena request filed with judge. No later than ten days prior to the hearing, a party may file a subpoena request with SOAH that demonstrates good cause to compel a witness's appearance in person or by telephone or video conference, when:
(1) a party intends to call more than two peace officers to testify as witnesses;
(2) a party seeks to compel the presence of witnesses who are not peace officers; or
(3) a defendant, who is not represented by an attorney, seeks to compel the presence of witnesses.
(d) Subpoena form. A subpoena request filed with a judge must be submitted on the form provided at www.soah.state.tx.us.
(e) Judge's discretion. The decision to issue a subpoena, as described in subsection (c) of this section, shall be in the sound discretion of the judge assigned to the case. The judge shall refuse to issue a subpoena if:
(1) the testimony or documentary evidence is immaterial, irrelevant, or would be unduly repetitious; or
(2) good cause has not been demonstrated.
(f) Service upon witness.
(1) The party who issues or is granted a subpoena shall be responsible for having the subpoena served in accordance with Texas Rule of Civil Procedure 176.5, or by accepted alternative methods established by a peace officer's law enforcement agency.
(2) A subpoena must be served at least five calendar days before the hearing.
(3) After a subpoena issued by an attorney or judge is served upon a witness, a witness fee check or money order in the amount of $10 and the return of service of the subpoena must be filed at SOAH at least three calendar days prior to the hearing. In addition, if the witness will be traveling more than 25 miles round-trip to the hearing from the witness's office or residence, mileage reimbursement must also be filed with SOAH at the same time. The amount of mileage reimbursement will be that listed in the state mileage guide at http://ecpa.cpa.state.tx.us/mileage/Mileage.jsp.
(4) If special equipment will be required in order to offer subpoenaed documents or tangible things, the party seeking their admission shall be required to supply the necessary equipment. The party requesting a subpoena duces tecum may be required to advance the reasonable costs of reproducing the documents or tangible things requested.
(g) Service upon opposing party.
(1) A party that issues a subpoena under subsection (b) of this section must serve the opposing party with a copy of the subpoena on the same date it is issued.
(2) A party that requests a subpoena under subsection (c) of this section must serve the opposing party with a copy of the request at the time it is filed with SOAH.
(3) A party that serves a subpoena must provide the opposing party with a copy of the return of service when the subpoena has been served and not later than three calendar days prior to the hearing.
(h) Continuing effect. A properly issued subpoena remains in effect until the judge releases the witness or grants a motion to quash or for protective order. If a hearing is rescheduled and a subpoena is extended, and unless the judge specifically directs otherwise, the party who requested the continuance shall promptly notify any subpoenaed witnesses of the new hearing date.
(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. A 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 party may seek an order from the judge at any time after the motion to quash or motion for protective order has been filed.
(3) In ruling on motions to quash or 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.
(4) If a subpoena request is denied or if a subpoena is quashed, any witness fee or mileage reimbursement fee that has been tendered to a witness or filed with SOAH shall be returned to the party who tendered the fees.
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 December 31, 2008.
TRD-200806734
Kerry D. Sullivan
General Counsel
State Office of Administrative Hearings
Effective date: January 20, 2009
Proposal publication date: July 4, 2008
For further information, please call: (512) 475-4931
The State Office of Administrative Hearings (SOAH) adopts new §159.151, comprising new Subchapter D. The new rule is adopted with changes to the proposal as published in the July 4, 2008, issue of the Texas Register (33 TexReg 5112). In response to comments, the number of days by which discovery must be produced has been changed. To clarify language but not in response to comments, SOAH has also made changes to the new section. In addition to typographical corrections, SOAH has deleted the last sentence in paragraph (4) because it was repetitive of §159.103(f)(4) of this title (relating to Subpoenas). The adopted new rule concerns the Administrative License Suspension Hearings, commonly known as the Administrative License Revocation (ALR) Program.
New Subchapter D, Discovery, includes §159.151, Prehearing Discovery. The new subchapter and section is adopted to replace outdated sections, update and clarify remaining sections, insert new language where appropriate, and reorganize the chapter for ease of reference and use.
Comments to the new rule were received during the comment period of July 4, 2008 through August 4, 2008, and at the public hearings conducted on September 19 and 26, 2008.
Comments: Commenters said the number of days between when DPS must file discovery until a subpoena must be served is insufficient.
SOAH's response: SOAH agrees and has changed the rule to require discovery to be served ten days before the hearing, rather than five days as had been proposed.
A commenter asked SOAH not to require officers to comply with subpoenas duces tecum as specified in paragraph (4).
SOAH's response: SOAH notes that the proposed rule makes no change to the current procedure, and officers will not be requested to bring items that are not in their actual possession.
The new rule is adopted 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 adopted new rule: Texas Transportation Code, Chapters 522, 524 and 724; Texas Government Code, Chapters 2001 and 2003; and Texas Penal Code, Chapter 49.
§159.151.Prehearing Discovery.
The scope of prehearing discovery in these proceedings is as follows:
(1) A defendant shall be allowed to review, inspect and obtain copies of any non-privileged documents or records in DPS's ALR file or in the possession of DPS's ALR Division. All requests for discovery must be in writing and shall be served upon DPS as prescribed in 37 TAC §17.16 (relating to Service on the Department of Certain Items Required to be Served on, Mailed to, or Filed with the Department). The request for discovery may not be filed with DPS sooner than the date of the request for hearing and may not be filed sooner than five days from the date of the notice of suspension. Upon a showing of harm by the defendant, and upon a showing of a proper request for discovery, no document in the ALR Division's actual possession will be admissible unless it was provided to the defendant within five business days of the receipt of the request for production. If the ALR Division does not have any or all the documents in its actual possession, it shall respond within five business days of defendant's request, setting out that it does not have the documents in its actual possession. DPS has a duty to supplement all its discovery responses within five business days from the time DPS's ALR Division receives possession of the discoverable documents. If a document is received by the defendant fewer than ten calendar days prior to the scheduled hearing, the judge shall grant a continuance on the request of a party. The judge may grant only one continuance for DPS's production of documents fewer than ten calendar days prior to the scheduled hearing.
(2) If a request for inspection, maintenance and/or repair records for the instrument used to test the defendant's specimen is made by the defendant, and those records are in the actual possession of DPS, DPS shall supply such records to the defendant within five days of receipt of the request, provided however, that the records to be provided shall be for the period covering 30 days prior to the test date and 30 days following the test date. If DPS fails to provide the properly requested records after the defendant has paid reasonable copying charges for the records, evidence of the breath specimen shall not be admitted into evidence.
(3) Depositions, interrogatories, and requests for admission shall not be permitted in ALR proceedings.
(4) Notwithstanding paragraph (1) of this section, if a party believes evidence from a third party is relevant and probative to the case, the party may request issuance of a subpoena duces tecum pursuant to §159.103 of this title (relating to Subpoenas) to have the evidence produced at the hearing. If a person subpoenaed under this section does not appear, the judge may grant a continuance to allow for enforcement of the subpoena.
(5) Notwithstanding anything to the contrary contained in this section, DPS has the right to request non-privileged documents from the defendant. Except in cases where sanctions may be sought for abuse of discovery under §155.157 of this title (relating to Sanctioning Authority), all requests from DPS shall be made under the provisions of this section.
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 December 31, 2008.
TRD-200806735
Kerry D. Sullivan
General Counsel
State Office of Administrative Hearings
Effective date: January 20, 2009
Proposal publication date: July 4, 2008
For further information, please call: (512) 475-4931
1 TAC §§159.201, 159.203, 159.205, 159.207, 159.209, 159.211, 159.213
The State Office of Administrative Hearings (SOAH) adopts new §§159.201, 159.203, 159.205, 159.207, 159.209, 159.211, and 159.213, comprising new Subchapter E. New §§159.201, 159.203, 159.205, and 159.207, and 159.213 are adopted without changes to the proposal as published in the July 4, 2008, issue of the Texas Register (33 TexReg 5113). New §159.209 is adopted with one change regarding confirmation of the identity of a witness who testifies by telephone; new subsection (b) was added to the section and the remaining subsections were renumbered accordingly. New §159.211 is adopted with one change; the reference in §159.211(c)(3) changes the reference as proposed from §159.209(b) to §159.209(c). These adopted new rules concern the Administrative License Suspension Hearings, commonly known as the Administrative License Revocation (ALR) Program.
New Subchapter E, Hearing and Prehearing, includes §§159.201, Scheduling and Notice of Hearing; 159.203, Waiver or Dismissal of Hearing; 159.205, General Request for Relief; 159.207, Continuances; 159.209, Participation by Telephone or Videoconference; 159.211, Hearings; and 159.213, Failure to Attend Hearing and Default. The new subchapter and sections are adopted to replace outdated sections, update and clarify remaining sections, insert new language where appropriate, and reorganize the chapter for ease of reference and use.
Comments to the new rules were received during the comment period of July 4, 2008 through August 4, 2008, and at the public hearings conducted on September 19 and 26, 2008.
Comments: A commenter objected to §159.209(a) which allows hearings to be conducted by videoconferencing. In the commenter's opinion, it would be too expensive for DPS to participate by video, and the process is not expressly permitted by statute.
SOAH's response: SOAH notes that hearings by videoconference are allowed only upon agreement of the parties; no change is made to the proposed rule.
A commenter stated that §159.211(c)(2) should allow admission of a peace officer's report even when a subpoenaed officer does not appear for a hearing.
SOAH's response: In SOAH's view, there must be some consequence when a witness does not comply with a subpoena. SOAH makes no change to proposed rule.
A commenter asked that §159.211 be changed to address the admissibility of a peace officer's unsworn report in a case in which the defendant refused to provide a specimen of breath or blood.
SOAH's response: SOAH notes that appellate courts have addressed this issue, and the proposed section makes no change in current law.
Some commenters who represent defendants would like more time than is specified in §159.213(a) between when the notice of hearing is sent and the day of the hearing.
SOAH's response: SOAH relies on Texas Transportation Code §524.031 which provides that a hearing will be not earlier than the 11th day after the person requesting the hearing is notified.
A commenter said the period in which a party may ask for a default decision to be set aside should remain as five days, rather than ten days as allowed by §159.213.
SOAH's response: SOAH has found that ten days will be a reasonable time for filing such a request.
The new rules are adopted 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 adopted new rules: Texas Transportation Code, Chapters 522, 524 and 724; Texas Government Code, Chapters 2001 and 2003; and Texas Penal Code, Chapter 49.
§159.209.Participation by Telephone or Videoconference.
(a) Consent of the parties. The judge may, with consent of the parties and if SOAH has been notified of a telephone or videoconference hearing request at least 14 days prior to the hearing date, conduct all or part of the hearing on the merits by telephone or videoconference if each participant in the hearing has an opportunity to participate in and hear the entire proceeding. The judge may conduct all or part of a hearing on preliminary matters by telephone or videoconference, on the judge's own motion, if each participant has an opportunity to participate in and hear the entire proceeding.
(b) Before a witness is allowed to give testimony by telephone, the judge will confirm that the witness is the person he or she has been represented to be.
(c) 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 or videoconference numbers for the purpose of their appearances at the hearing. The parties shall contact their respective witnesses to assure their availability at the hearing.
(d) 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 may go off the record and allow the witness to read the document to the opposing party.
(e) 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 videoconference 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.
§159.211.Hearings.
(a) Procedures.
(1) Hearings shall be conducted in accordance with the APA, Texas Government Code, Chapter 2001, when applicable, and with this chapter, provided that if there is a conflict between the APA and this chapter, this chapter shall govern. If a conflict exists between this chapter and the Texas Transportation Code, Chapters 522, 524, or 724, and these rules cannot be harmonized with those chapters, the applicable Texas Transportation Code provision 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 Texas Government Code §2001.081, the rules of evidence as applied in a non-jury civil case in a district court of this state shall apply in ALR proceedings.
(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 §159.103 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. In the alternative, if the party who requested the subpoena wants to seek enforcement of the subpoena, the judge may grant the party a continuance.
(3) The judge, on his or her own motion or on request of a party and with the consent of all parties, may allow the testimony of any witness to be taken by telephone or videoconference, provided that all parties have the opportunity to participate in and hear the proceeding. All substantive and procedural rights apply to the telephone or videoconference appearance of a witness, subject to the limitations of the physical arrangement as described in §159.209(c) of this title (relating to Participation by Telephone or Videoconference).
(d) Record of hearing.
(1) The judge shall make an accurate and complete recording of the oral proceedings of the hearing.
(2) SOAH will maintain a case file that includes the 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. When an interpreter will be needed for all or part of a proceeding, a party shall file a written request at least seven days before the hearing. SOAH shall provide and pay for:
(1) an interpreter for deaf or hearing impaired parties and subpoenaed witnesses in accordance with §2001.055 of the APA;
(2) reader services or other communication services for blind and sight-impaired parties and witnesses; and
(3) a certified language interpreter for parties and witnesses who need that service.
(f) If the defendant fails to make a timely request, the judge may provide an interpreter or may continue the hearing to secure an interpreter.
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 December 31, 2008.
TRD-200806736
Kerry D. Sullivan
General Counsel
State Office of Administrative Hearings
Effective date: January 20, 2009
Proposal publication date: July 4, 2008
For further information, please call: (512) 475-4931
1 TAC §§159.251, 159.253, 159.255
The State Office of Administrative Hearings (SOAH) adopts new §§159.251, 159.253, and 159.255, comprising new Subchapter F. The new rules are adopted without changes to the proposal as published in the July 4, 2008, issue of the Texas Register (33 TexReg 5115). These adopted new rules concern the Administrative License Suspension Hearings, commonly known as the Administrative License Revocation (ALR) Program.
New Subchapter F, Disposition of Case, includes §§159.251, Hearing Disposition; 159.253, Decision of the Judge; and 159.255, Appeal of Judge's Decision. The new subchapter and sections are adopted to replace outdated sections, update and clarify remaining sections, insert new language where appropriate, and reorganize the chapter for ease of reference and use.
No comments were received regarding these new rules during the comment period of July 4, 2008 through August 4, 2008, or at the public hearings held on September 19 and 26, 2008.
The new rules are adopted 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 adopted new rules: Texas Transportation Code, Chapters 522, 524 and 724; Texas Government Code, Chapters 2001 and 2003; and Texas Penal Code, Chapter 49.
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 December 31, 2008.
TRD-200806737
Kerry D. Sullivan
General Counsel
State Office of Administrative Hearings
Effective date: January 20, 2009
Proposal publication date: July 4, 2008
For further information, please call: (512) 475-4931
CHAPTER 355. REIMBURSEMENT RATES
SUBCHAPTER E. COMMUNITY CARE FOR AGED AND DISABLED
The Texas Health and Human Services Commission (HHSC) adopts an amendment to §355.509, Reimbursement Methodology for Residential Care, under Title 1, Part 15, Chapter 355, Subchapter E. The proposed rule is adopted without changes to the proposed text as published in the October 24, 2008, issue of the Texas Register (33 TexReg 8701).
Background and Justification
This rule establishes the reimbursement methodology for the Residential Care (RC) program. HHSC, under its authority and responsibility to administer and implement rates, is updating this rule to add a condition under which a provider may be excused from submitting a cost report. The adopted amendment revises §355.509(b)(3) to excuse a Residential Care provider from submitting a cost report if the provider's total number of Residential Care billable days of service is 366 or fewer in the provider's fiscal year. This new condition will mirror a condition currently included in the Community Based Alternatives Assisted Living/Residential Care (CBA AL/RC) Reimbursement Methodology rules.
Many providers hold both RC and CBA AL/RC contracts and submit their cost information on a combined RC and CBA AL/RC cost report. Currently providers of CBA AL/RC services are excused from submitting a cost report to HHSC Rate Analysis if the provider's total number of CBA AL/RC billable days serving residents is 366 or fewer in the provider's fiscal year. Providers of RC services in similar circumstances are not excused. This inconsistency causes confusion among providers holding both RC and CBA AL/RC contracts. The amendment will eliminate this confusion by standardizing cost reporting requirements across both programs.
Comments
The 30-day comment period ended November 23, 2008. During this period, HHSC received no comments regarding the proposed amendments to this rule.
The amendment is adopted under the Human Resources Code, §32.021, which provides HHSC with the authority to adopt rules necessary to administer the federal medical assistance (Medicaid) program in Texas; Texas Government Code, §531.033, which authorizes the Executive Commissioner of HHSC to adopt rules necessary to carry out the commission's duties; and the Texas Government Code §531.021(a), which authorizes the Executive Commissioner to adopt rules for the operation and provision of health and human services by the health and human services agencies and to adopt or approve rates of payment required by law to be adopted or approved by a health and human services agency.
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 January 5, 2009.
TRD-200900002
Steve Aragón
Chief Counsel
Texas Health and Human Services Commission
Effective date: January 25, 2009
Proposal publication date: October 24, 2008
For further information, please call: (512) 424-6900