Current through Reg. 49, No. 38; September 20, 2024
(a) Where applicable, upon the filing of a
complaint with the appropriate office, the office shall determine whether the
complaint complies with its prescribed form, if any, and whether a contested
case should be initiated.
(1) If the office
determines that the complaint does not substantially comply with its form, the
office may return the complaint to the person who filed it, together with a
statement of the office's reasons for returning the complaint.
(A) The person who filed a complaint shall
thereafter have the right to correct and refile the complaint.
(B) The refiling of the complaint shall be
within the time limit prescribed by the office.
(2) If the office determines that the
complainant complies with its prescribed form but fails to state facts which,
if proven, would be grounds for the secretary to take action, the complainant
will be notified of the basis for such determination.
(A) The complainant shall be allowed to
submit additional facts which, if proven, would be grounds for action by the
secretary.
(B) The submission of
the additional facts shall be within the time period specified by the
office.
(C) If the person who filed
the complaint does not submit additional facts within the time allowed, no
further action shall be taken on the complaint and the file pertaining to the
complaint shall be closed.
(3) If the agency determines that the legal
rights, duties, or privileges of a party might be affected by action taken as a
result of a complaint or the agency determines on its own volition that a
contested case should be initiated, the agency shall give notice by certified
mail to the party of facts and conduct alleged to warrant the intended action,
and the party shall be given an opportunity as described in the notice to show
compliance with all requirements of the law concerning the applicable rights,
duties, or privileges.
(4) It is
the intention of the Office of the Secretary of State to afford all parties an
opportunity for a hearing in all contested cases.
(5) If revocation, suspension, probation, or
other action concerning a registration, license, or commission is proposed, the
agency shall give written notice to the affected party that the party must
request, in writing, a formal hearing within 10 days of receipt of the notice.
The notice shall state the basis for the proposed action. Receipt of the notice
is presumed to occur on the 10th day after the notice is mailed to the last
known address shown in the most recent filing with the appropriate office of
the agency unless another date is reflected on a United States Postal Service
return receipt.
(6) If no timely
request for a hearing is received, the party is deemed to have waived the
hearing and be in agreement with the allegations and proposed action.
(7) If the hearing is waived, action
including, but not limited to, suspension, revocation, or probation of the
registration, license, or commission, shall be taken by an order of the
secretary of state.
(8) If a civil
penalty is assessed pursuant to the Athlete Agents Act, Texas Civil Statutes,
Article 8871, the procedures delineated in Section 9 of the referenced Athlete
Agents Act supersedes those stated in paragraphs (1)-(7) of this
subsection.
(9) If a formal hearing
is requested, it shall be conducted in accordance with the provisions of the
Administrative Procedure Act, other state statutes, agency rules applying to
such hearings, and the rules of the State Office of Administrative
Hearings.
(b) A formal
hearing is initiated by the filing of a petition with the State Office of
Administrative Hearings and a request for a setting of a hearing or an
assignment of an administrative law judge in accordance with §
RSA 155.7 of
this title (relating to Jurisdiction). The formal hearing is conducted by the
State Office of Administrative Hearings. The petition shall state the
following:
(1) the name and address of the
person initiating the proceeding or the name and address of the party's
attorney or representative, if any;
(2) a statement of the legal authority and
jurisdiction under which the contested case has been initiated;
(3) a reference to the particular sections of
the statutes and rules involved;
(4) a statement of the matters
asserted;
(5) a copy of the
complaint, if any, upon which the proceeding is based; and
(6) the relief requested.
(c) Unless otherwise provided by
law, where an office initiates a contested case on its own volition, the Office
of Administrative Hearings shall assign a hearings examiner to hear the case
and the office shall follow the notice procedures as outlined by §
RSA
101.7 of this title (relating to Personal
Service by the Agency).
(d) Upon
the filing of any pleading, the hearing examiner may examine same and determine
its sufficiency under these sections.
(1) If
the hearings examiner finds that the pleading does not substantially comply
with these sections, the hearings examiner may return it to the person who
filed it, together with a statement of the reasons for returning the
pleading.
(2) The person who filed
such pleading shall thereafter have the right to correct and refile the
pleading, provided that the refiling of such shall not be permitted to delay
any contested case, unless the hearings examiner determines that the interest
of justice so requires.
