Current through Reg. 49, No. 38; September 20, 2024
(a) If a party fails to appear for the
hearing, the opposing party may move to proceed in that party's absence on a
default basis.
(b) A motion for a
default proceeding under this section must be supported by adequate proof of
the following:
(1) the notice of hearing
included a disclosure in at least 12-point, bold-face type that the factual
matters asserted in the notice or pleadings could be deemed admitted and that
the relief sought might be granted by default against the party that fails to
appear at the hearing;
(2) the
notice of hearing satisfies the requirements of Tex. Gov't Code §
RSA 2001.051 and
§ 2001.052, and §
RSA 155.401 of
this chapter; and
(3) the notice of
hearing and any pleadings sought to be admitted were:
(A) issued or received by the defaulting
party; or
(B) properly served to
the defaulting party or their attorney.
(c) In the absence of a motion for default or
adequate proof to support a default, the judge shall continue the case and
direct the party responsible to provide adequate notice of hearing. If the
responsible party persists in failing to provide adequate notice, the judge may
dismiss the case from the SOAH docket for want of prosecution.
(d) Upon receiving a motion for default and
the required showing of proof to support a default, the judge may grant the
motion and issue one of the following:
(1)
Default dismissal. In default proceedings where SOAH is not authorized by law
to render a final decision in the proceeding, upon motion for default
dismissal, the judge may issue an order finding adequate notice, granting a
default dismissal based on facts deemed to be admitted.
(2) Default proposal for decision. In default
proceedings where SOAH is not authorized by law to render a final decision in
the proceeding, upon motion for a default proposal for decision, the judge may
deem admitted the factual matters asserted in the notice of hearing or the
non-defaulting party's pleadings and issue a proposal for decision.
(3) Default decision. In default proceedings
where SOAH is authorized by law to render a final determination in the
proceeding, upon motion for a default decision, the judge may deem admitted the
factual matters asserted in the notice of hearing or the non-defaulting party's
pleadings and issue a default decision.
(e) Default dismissals.
(1) An order of default dismissal issued
under subsection (d)(1) of this section shall inform the party of the
opportunity to have the default set aside under this subsection by filing an
adequate motion no later than 15 days after the issuance of the order of
default dismissal.
(2) If a motion
to set aside a default dismissal is filed within 15 days after the issuance of
an order of default dismissal, the judge will rule on the motion and either:
(A) grant the motion, set aside the default,
and reopen the hearing for good cause shown; or
(B) issue an order denying the motion and
remand the case to the referring agency for informal disposition on a default
basis in accordance with Tex. Gov't Code §
RSA
2001.056.
(3) In the absence of a timely motion to set
aside a default, the case will be remanded to the referring agency for informal
disposition on a default basis in accordance with Tex. Gov't Code §
RSA 2001.056 after
the expiration of 15 days from the date of the order of default
dismissal.
(4) Dismissal under this
section removes the case from the SOAH docket without a decision on the
merits.
(f) Default
proposals for decision. A default proposal for decision issued under subsection
(d)(2) of this section is subject to §
RSA
155.507 of this chapter.
(g) Default decisions.
(1) Default decisions are subject to motions
for rehearing as provided for in the APA.
(2) A default decision issued under
subsection (d)(3) of this section shall inform the party of the opportunity to
have the default set aside by filing a motion for rehearing under Tex. Gov't
Code Chapter 2001, Subchapter F.
(h) Motions to Set Aside Default.
(1) A motion to set aside default under this
section shall set forth the grounds for reinstatement or rehearing and must be
supported by affidavit of the movant or their attorney that:
(A) the party had no notice of the
hearing;
(B) the party had no
notice of the consequences for failure to appear; or
(C) although the party had notice, its
failure to appear was not intentional or the result of conscious indifference,
but due to reasonable mistake or accident that can be supported by adequate
proof; and
(D) a statement of
whether the motion is opposed, and if the motion is opposed, a list of dates
and times for a hearing on the motion that are agreeable to both
parties.
(2) Whether or
not the motion is opposed, the judge may rule on the motion without setting a
hearing or may set a hearing to consider the motion. If the judge finds good
cause for the defaulting party's failure to appear, the judge shall vacate the
default and reset the case for a hearing.
