Current through Reg. 49, No. 38; September 20, 2024
(a) Purpose. The
purpose of this rule is to provide the procedural steps by which an appeal can
be filed relating to Department decisions as authorized by Tex. Gov't Code
§
2306.0321 and §
2306.0504 which
together require an appeals process be adopted by rule for the handling of
appeals relating to Department decisions and debarment. Appeals relating to
competitive low income housing tax credits, or when multifamily loans are
contemporaneously layered with competitive low income housing tax credits, and
the associated underwriting, are governed by a separate appeals process
provided at §
11.902 of this title (relating to
Appeals Process) (§2306.0321; §2306.6715).
(b) Definitions. The following words and
terms, when used in this subchapter, shall have the following meanings, unless
the context clearly indicates otherwise. If not defined in this section,
capitalized terms used in this section have the meaning in the rules that
govern the applicable program under which the appeal is being filed.
(1) Affiliated Party--An individual,
corporation, partnership, joint venture, limited liability company, trust,
estate, association, cooperative or other organization or entity of any nature
whatsoever that directly, or indirectly through one or more intermediaries, has
Control of, is Controlled by, or is under common Control with any other Person.
All entities that share a Principal are Affiliates.
(2) Appeal--An Appealing Party's notice to
the Department to challenge a decision or decisions made by staff and/or the
Executive Director regarding an Application, Commitment, Contract, Loan
Agreement, Debarment, Underwriting Report, or LURA as governed by this
section.
(3) Appeal File--The
written record of an Appeal that contains the applicant's Appeal; the
correspondence, if any, between Department staff (or the Executive Director)
and the Appealing Party; and the final Appeal decision response provided to the
Appealing Party.
(4) Appealing
Party--The Administrator, Affiliated Party, Applicant, Person, or Responsible
Party under subchapter D, §
2.102 of this title (relating to
Enforcement Definitions) who files, intends to file, or has filed on their
behalf, an Appeal before the Department.
(c) Persons Eligible to Appeal. An Appeal may
be filed by any Administrator, Applicant, Person, or Responsible Party as
provided for in subchapter D, §
2.102 of this title, or Affiliated
Party of the Administrator, Applicant, Person or Responsible Party who has
filed an Application for funds or reservation with the Department, or has
received funds or a reservation from the Department to administer.
(d) Grounds to Appeal Staff Decision. Appeals
may be filed using this process on the following grounds:
(1) Relating to applying for funds or
requesting to be approved for reservation authority an Appealing Party may
appeal if there is:
(A) Disagreement with the
determination of staff regarding the sufficiency or appropriateness of
documents submitted to satisfy evidence of a given threshold or scoring
criteria, including the calculation of any scoring based items;
(B) Disagreement with the termination of an
application;
(C) Disagreement with
the denial of an award or reservation request;
(D) Disagreement with the amount of the award
recommended by the Department, unless that amount is the amount requested by
the Applicant;
(E) Disagreement
with one or more conditions placed on the award or reservation; or
(F) Concern that the documents submitted were
not processed by Department staff in accordance with the Application and
program rules in effect.
(2) Relating to issues that arise after the
award or reservation determination by the Board, an Appealing Party may appeal
if there is disagreement with a denial by the Department of a Contract,
payment, Commitment, Loan Agreement, or LURA amendment that was requested in
writing.
(3) When grounds for
appeal are not evidenced or stated in conformance with this Section, the Board
or the Executive Director may determine in their discretion that there is good
cause for an Appeal because due process interests are sufficiently
implicated.
(4) Relating to
debarment, a Responsible Party may appeal a determination of debarment, as
further provided for in §
2.401(k) of this
title (relating to General).
(5)
Affiliated Party Appeals. An Affiliated Party has the ability to appeal only
those decisions that directly impact the Affiliated Party, not the underlying
agreements. An Affiliated Party may appeal a finding of failure to adequately
perform under an Administrator's Contract, resulting in a "Debarment" or a
similar action, as further described in chapter 2, subchapter D of this title,
Debarment from Participation in Programs Administered by the
Department.
(e) Process
for Filing an Appeal of Staff Decision to the Executive Director.
(1) An Appealing Party must file a written
Appeal of a staff decision with the Executive Director not later than the
seventh calendar day after notice has been provided to the Appealing Party. For
purposes of this section, the date of notice will be considered the date of an
Application-specific written communication from the Department to the
Applicant; in cases in which no Application-specific written communication is
provided, the date of notice will be the date that logs are published on the
Department's website when such logs are identified as such in the application
including but not limited to a Request for Proposals or Notice of Funding
Opportunity, or in the rules for the applicable program as a public
notification mechanism.
(2) The
written appeal must include specific information relating to the disposition of
the Application or written request for change to the Contract, Commitment, Loan
Agreement, and/or LURA. The Appealing Party must specifically identify the
grounds for the Appeal based on the disposition of underlying
documents.
(3) Upon receipt of an
Appeal, Department staff shall prepare an Appeal File for the Executive
Director. The Executive Director shall respond in writing to the Appealing
Party not later than the fourteenth calendar day after the date of receipt of
the Appeal. The Executive Director may take one of the following actions:
(A) Concur with the Appeal and make the
appropriate adjustments to the staff's decision;
(B) Disagree with the Appeal, in concurrence
with staff's original determination, and provide the basis for rejecting the
Appeal to the Appealing Party; or
(C) In the case of appeals in exigent
circumstances (such as conflict with a statutory deadline) or with the consent
of the appellant, for appeals received five calendar days or less of the next
scheduled Board meeting, the Executive Director may decline to make a decision
and have the appeal deferred to the Board per the process outlined in
subsection (f)(2) of this section, for final action.
(f) Process for Filing an Appeal
of the Executive Director's Decision to the Board.
(1) If the Appealing Party is not satisfied
with the Executive Director's response to the Appeal provided in subsection
(e)(3) of this section, they may appeal in writing directly to the Board within
seven calendar days after the date of the Executive Director's
response.
(2) In order to be placed
on the agenda of the next scheduled meeting of the Department's Board, the
Appeal must be received by the Department at least fourteen days prior to the
next scheduled Board meeting. Appeals requested under this section received
after the fourteenth calendar day prior to the Board meeting will generally be
scheduled at the next subsequent Board meeting. However, the Department
reserves the right to place the Appeal on a Board meeting agenda if an Appeal
that is timely filed under paragraph (1) of this subsection is received fewer
than fourteen calendar days prior to the next scheduled Board meeting. The
Executive Director shall prepare Appeal materials for the Board's review based
on the information provided.
(3) If
the Appealing Party receives additional information after the Executive
Director has denied the Appeal, but prior to the posting of the Appeal for
Board consideration, the new information must be provided to the Executive
Director for further consideration or the Board will not consider any
information submitted by the Applicant after the written Appeal. New
information will cause the deadlines in this subsection to begin again. The
Board will review the Appeal de novo and may consider any information properly
considered by the Department in making its prior decision(s).
(4) Public Comment on an Appeal Presented to
the Board. The Board will hear public comment on the Appeal under its Public
Comment Procedures in §
1.10 of this subchapter (relating
to Public Comment Procedures). While public comment will be heard, persons
making public comment are not parties to the Appeal, and no rights accrue to
them under this section or any other Appeal process. Nothing in this section
provides a right to Appeal any decision made on an Application, Commitment,
Contract, Loan Commitment, or LURA if the Appealing Party does not have grounds
to appeal as described in subsection (d) of this section.
(5) In the case of possible actions by the
Board regarding Appeals, the Board may:
(A)
Concur with the Appealing Party and grant the Appeal; or
(B) Disagree with the Appealing Party, in
concurrence with the Executive Director's original determination, and provide
the basis for rejecting the Appeal.
(C) In instances in which the Appeal, if
granted by the Board would have resulted in an award to the Applicant, the
Application shall be evaluated for an award as it relates to the availability
of funds, and staff will recommend an action to the Board in the meeting at
which the Appeal is heard, or a subsequent meeting. If no funds are available
in the current year's funding cycle, then the Appealing Party may be awarded
funds from a pool of deobligated funds or other source, if available.
(D) In the case of actions regarding all
other Appeals, the Board shall direct staff on what specific remedy is to be
provided, allowable under current laws and rules.
(g) Board Decision. Appeals not
submitted in accordance with this section will not be considered, unless the
Executive Director or Board, in the exercise of its discretion, determines
there is good cause to consider the appeal. The decision of the Board is
final.
(h) Limited Scope. The
appeals process provided in this rule is of general application. Any statutory
or specific rule with a different appeal process, including the limitations
expressed in subsection (a) of this section, will be governed by the more
specific statute or rule. Except as provided for in §
2.401 of this title, this section
does not apply to matters involving a Contested Case Proceeding under §
1.13 of this subchapter (relating
to Contested Case Hearing Procedure).
