PART 3. TEACHER RETIREMENT SYSTEM OF TEXAS
CHAPTER 43. CONTESTED CASES
34 TAC §§43.1 - 43.21, 43.23 - 43.29, 43.33 - 43.48
The Teacher Retirement System of Texas (TRS) adopts the repeal of §§43.1, 43.2, 43.3, 43.4, 43.5, 43.6, 43.7, 43.8, 43.9, 43.10, 43.11, 43.12, 43.13, 43.14, 43.15, 43.16, 43.17, 43.18, 43.19, 43.20, 43.21, 43.23, 43.24, 43.25, 43.26, 43.27, 43.28, 43.29, 43.33, 43.34, 43.35, 43.36, 43.37, 43.38, 43.39, 43.40, 43.41, 43.42, 43.43, 43.44, 43.45, 43.46, 43.47, and 43.48 of Chapter 43 (relating to Contested Cases) in Part 3 of Title 34 of the Texas Administrative Code. These repeals are adopted without changes to the proposed text as published in the October 11, 2024, issue of the Texas Register (49 TexReg 8333). The repeals are adopted in conjunction with the adopted new rules under Chapter 43 published elsewhere in this issue of the Texas Register.
REASONED JUSTIFICATION
In 2022, the TRS board of trustees approved the adoption of TRS's four-year rule review. As part of that adopted rule review, TRS staff recommended amending or repealing and readopting all of Chapter 43 of TRS rules, which govern the pension appeals process, in order to improve the readability of the chapter for TRS members and staff. To implement this recommendation, TRS adopts the repeal of its existing 44 rules under Chapter 43 as part of a complete restructuring and revision of that chapter. In addition, TRS has adopted 49 new rules to replace these proposed repealed rules in Chapter 43. The adopted new rules are published elsewhere in this issue of the Texas Register.
TRS has determined that the repealed rules shall become effective on the same date that the proposed new Chapter 43 rules become effective.
COMMENTS
TRS received no public comments on the proposed repeals.
STATUTORY AUTHORITY
The repealed rules are adopted under the authority of Government Code §825.102, which authorizes the Board to adopt rules for eligibility for membership, the administration of the funds of the retirement system, and the transaction of business of the Board; and Government Code §825.115(b), which authorizes the Board to adopt rules relating to the authority of the Board to make a final decision in a contested case or delegate its authority.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on December 13, 2024.
TRD-202406026
Don Green
Chief Financial Officer
Teacher Retirement System of Texas
Effective date: January 2, 2025
Proposal publication date: October 11, 2024
For further information, please call: (512) 542-6506
The Teacher Retirement System of Texas (TRS) adopts new §§43.1, 43.2, 43.3, 43.4, 43.5, 43.6, and 43.7 under new Subchapter A (relating to General Administration) of Chapter 43 in Part 3 of Title 34 of the Texas Administrative Code; new §§43.101, 43.102, 43.103, 43.104, 43.105, 43.106, and 43.107 under new Subchapter B (relating to Requests for Adjudicative Hearing) of Chapter 43 in Part 3 of Title 34 of the Texas Administrative Code; new §§43.201, 43.202, 43.203, 43.204, 43.205, 43.206, 43.207, 43.208, 43.209, 43.210, 43.211, 43.212, 43.213, 43.214, 43.215, 43.216, 43.217, 43.218, 43.219, 43.220, 43.221, 43.222, 43.223, 43.224, 43.225, 43.226, 43.227, and 43.228 under new Subchapter C (relating to Hearings Not Docketed at SOAH) of Chapter 43 in Part 3 of Title 34 of the Texas Administrative Code; and new §§43.301, 43.302, 43.303,43.304, 43.305, 43.306, and 43.307 under new Subchapter D (relating to Final Decisions of TRS) of Chapter 43 in Part 3 of Title 34 of the Texas Administrative Code. These new rules are adopted without changes to the proposed text as published in the October 11, 2024, issue of the Texas Register (49 TexReg 8335) and will not be republished. The new rules are adopted in conjunction with the repeal of all current rules under Chapter 43 (relating to Contested Cases) in Part 3 of Title 34 of the Texas Administrative Code as published elsewhere in this issue of the Texas Register.
REASONED JUSTIFICATION
In 2022, the TRS board of trustees approved the adoption of TRS's four-year rule review. As part of that adopted rule review, TRS staff recommended amending or repealing and readopting all of Chapter 43 of TRS rules, which govern the pension appeals process, in order to improve the readability of the chapter for TRS members and staff. To implement this recommendation, TRS is adopting 49 new rules in Chapter 43. In addition, TRS is also repealing all 44 current rules in Chapter 43.
As recommended in rule review, the new rules primarily restructure the existing Chapter 43 rules to increase readability and usability for both TRS members and TRS staff. For instance, the new rules are divided into four new subchapters to clarify which rules apply at which point in the TRS appeal process. In addition, 42 of the 44 current Chapter 43 rules are being readopted wholly or in part with, primarily, nonsubstantive style and structural changes.
The new rules also provide for several minor administrative improvements to the pension appeals process. These improvements include clarifying the exceptions process after the administrative law judge issues a proposal for decision and the deadline for members to resubmit petitions for adjudicative hearing that were rejected for formal deficiencies.
Lastly, the new rules make substantive changes to the hearing process for appeals to the board of trustees. These changes include: delegating the board's authority to determine whether to have oral argument to the executive director in consultation with the board chair; providing an expanded opportunity for parties to submit written briefs to the board; and clarifying the hearing process for disability appeals that come before the board.
These changes will improve the hearing process by expediting the process to determine whether oral argument will be granted while simultaneously ensuring that all parties have equal opportunity to provide written argument to the board. Further, the changes to the disability appeal process clarify how confidentiality, oral argument, and the board's review of the ALJ's proposal for decision shall proceed.
A full rule-by-rule description of the new rules is provided below.
SECTION-BY-SECTION SUMMARY
New §43.1 of this title (relating to the Applicability) readopts portions of current §43.1 of this title (relating to Administrative Review of Individual Requests) and §43.9 of this title (relating to Docketing of Appeal for Adjudicative Hearing and Dismissal for Failure to Obtain Setting) in new subsections (a) and (c), respectively. In addition, new §43.1(b) clarifies that appeals relating to qualified domestic relations orders are governed by Chapter 47 of this title (relating to Qualified Domestic Relations Order) and not governed by Chapter 43.
New §43.2 of this title (relating to Definitions) largely readopts the existing provisions of current §43.3 of this title (relating to Definitions) with minor, nonsubstantive changes for style and clarity purposes.
New §43.3 of this title (relating to Filing of Documents) largely readopts the existing provisions of current §43.6 of this title (relating to Filing of Documents) with minor, nonsubstantive changes for style and clarity purposes. In addition, new §43.3 also provides the procedures for filing of documents if TRS has referred an appeal for hearing before an administrative law judge (ALJ) not affiliated with the State Office of Administrative Hearings (SOAH).
New §43.4 of this title (relating to Computation of Time) primarily readopts current §43.7 of this title (relating to Computation of Time) with minor, clarifying changes.
New §43.5 of this title (relating to Extensions) readopts current §43.8 of this title (relating to Extensions) with minor, nonsubstantive changes for style and clarity purposes.
New §43.6 (relating to Ex Parte Consultations) readopts the provisions of current §43.36 of this title (relating to Ex Parte Consultations) and also clarifies that its provisions apply to all contested cases under Chapter 43, not just those heard before a hearing officer not affiliated with SOAH.
New §43.7 of this title (relating to Procedures Not Otherwise Provided) readopts current §43.47 of this title (relating to Procedures Not Otherwise Provided) with a clarifying change that the board of trustees and TRS deputy director may also, in addition to the ALJ and executive director, resolve procedural issues as necessary in accordance with this provision when there are no other applicable TRS rules or statutes.
New §43.1 through new §43.7 are adopted to be included in adopted new Subchapter A (relating to General Administration) in Chapter 43 of TRS rules.
New §43.101 of this title (relating to Administrative Review of Individual Requests) readopts portions of current §43.1 of this title (relating to Administrative Review of Individual Requests) that pertain to the administrative review of pension appeals that do not relate to eligibility for disability retirement. New §43.101 also makes minor, conforming changes to the text of current §43.1.
New §43.102 of this title (relating to Administrative Review of Disability Determinations) readopts subsection (f) of current §43.1 of this title, which relates to the administrative review of disability determinations made by the TRS Medical Board. New §43.102 also provides procedural steps for the review that are analogous to the steps for administrative reviews under new §43.101. Lastly, new §43.102 provides that a TRS member who pursues an adjudicative hearing on the member's eligibility for disability retirement consents to public hearing of that appeal once it reaches the TRS Board of Trustees.
New §43.103 of this title (relating to Administrative Review of Option Beneficiary or Optional Retirement Annuity Plan Changes) readopts subsection (b) of current §43.4 of this title (relating to Decisions Subject to Review by an Adjudicative Hearing).
New §43.104 of this title (relating to Request for Adjudicative Hearing) largely readopts provisions from current §43.5 of this title (relating to Request for Adjudicative Hearing) and subsections (d) and (e) of current §43.12 of this title (relating to Form of Petitions and Other Pleadings). In addition, new §43.104 provides that a petition for adjudicative hearing must include "a concise statement of the facts supporting the petition and a statement of the specific relief requested from TRS" to correspond with analogous provisions in paragraphs (f)(2)-(3) of current §43.12.
New §43.105 of this title (relating to Docketing of Petition for Adjudicative Hearing and Dismissal for Failure to Obtain Setting) readopts provisions from current §43.4 of this title and §43.9 of this title that relate to the determination to docket or decline to docket a petition for adjudicative hearing. In addition, new §43.105 clarifies the deadline for how long a party has to resubmit a petition that the deputy director rejects for formatting purposes.
New §43.106 of this title (relating to Authority to Grant Relief) primarily readopts current §43.10 of this title (relating to Authority to Grant Relief) with minor, nonsubstantive changes for style and clarity. New §43.106 also clarifies that the chief benefit officer has the authority to grant an appeal while it remains in the docketing process.
New §43.107 of this title (relating to Subpoenas and Commissions) primarily readopts current §43.43 (relating to Subpoenas and Commissions). In addition, new §43.107 simplifies the subpoena and commission process by placing all authority to issue subpoenas and commissions with the deputy director and providing that only the parties and the ALJ may request a subpoena or commission.
New §43.101 through new §43.107 are adopted to be included in adopted new Subchapter B (relating to Requests for Adjudicative Hearing) in Chapter 43 of TRS rules.
New §43.201 of this title (relating to Applicability) is a new rule that provides that the provisions of new Subchapter C of Chapter 43 (relating to Hearings Not Docketed at SOAH) only apply to hearings docketed to be heard by a hearing official not affiliated with SOAH.
New §43.202 of this title (relating to Form of Pleadings) primarily readopts the provisions relating to pleadings of current §43.12 of this title with only minor conforming changes except the provisions related to petitions (specifically subsections (d)-(e) of current §43.12). Those subsections are readopted in new §43.104 of this title (relating to Request for Adjudicative Hearing).
New §43.203 of this title (relating to Filing of Pleadings and Amendments) primarily readopts the provisions of current §43.13 of this title (relating to Filing of Pleadings and Amendments) with only minor conforming changes.
New §43.204 of this title (relating to Briefs) primarily readopts the provisions of current §43.14 of this title (relating to Briefs) with only minor conforming changes.
New §43.205 of this title (relating to Motions) primarily readopts the provisions of current §43.15 of this title (relating to Motions) with only minor conforming changes.
New §43.206 of this title (relating to Discovery) primarily readopts the provisions of current §43.44 of this title (relating to Discovery) with only minor conforming changes and to update the reference to SOAH's procedural rules regarding discovery.
New §43.207 of this title (relating to Notice of Hearing and Other Action) primarily readopts the provisions of current §43.16 of this title (relating to Notice of Hearing and Other Action) with only minor changes for style and clarity.
New §43.208 of this title (relating to Agreements To Be in Writing) primarily readopts the provisions of current §43.17 of this title (relating to Agreements To Be in Writing) with only minor conforming changes.
New §43.209 of this title (relating to Motion for Consolidation) primarily readopts the provisions of current §43.18 of this title (relating to Motion for Consolidation) with only minor conforming changes.
New §43.210 of this title (relating to Additional Parties) primarily readopts the provisions of current §43.19 of this title (relating to Additional Parties) with only minor changes for style and clarity.
New §43.211 of this title (relating to Appearance and Representation) primarily readopts the provisions of current §43.20 of this title (relating to Appearance and Representation) with only minor conforming changes.
New §43.212 of this title (relating to Lead Counsel) readopts the provisions of current §43.21 of this title (relating to Lead Counsel).
New §43.213 of this title (relating to Powers of the Administrative Law Judge) primarily readopts the provisions of current §43.23 of this title (relating to Powers of the Administrative Law Judge) with only minor conforming changes.
New §43.214 of this title (relating to Prehearing Conference and Orders) readopts the provisions of current §43.24 of this title (relating to Prehearing Conference and Orders).
New §43.215 of this title (relating to Conduct of Hearing) primarily readopts the provisions of current §43.25 of this title (relating to Conduct of Hearing) with minor conforming changes and a clarification that all TRS contested case hearings before a hearing officer not affiliated with SOAH are confidential. This is the same standard as contested case hearings heard before SOAH.
New §43.216 of this title (relating to General Admissibility) readopts the provisions of current §43.26 of this title (relating to General Admissibility).
New §43.217 (relating to Exhibits) primarily readopts the provisions of current §43.27 of this title (relating to Exhibits) with only minor conforming changes and changes for style and clarity.
New §43.218 of this title (relating to Pre-filed Direct Testimony in Disability Appeal Proceedings) readopts the provisions of current § 43.28 (relating to Pre-filed Direct Testimony in Disability Appeal Proceedings).
New §43.219 of this title (relating to Limit on Number of Witnesses) readopts the provisions of current §43.29 of this title (relating to Limit on Number of Witnesses).
New §43.220 of this title (relating to Failure to Appear) readopts the provisions of current §43.33 of this title (relating to Failure to Appear).
New §43.221 of this title (relating to Conduct and Decorum at Hearing) primarily readopts the provisions of §43.34 of this title (relating to Conduct and Decorum at Hearing) with only minor conforming changes.
New §43.222 of this title (relating to Official Notice) readopts the provisions of §43.35 of this title (relating to Official Notice).
New §43.223 of this title (relating to Recording of the Hearing; Certified Language Interpreter) primarily readopts the provisions of current §43.37 of this title (relating to Recording of the Hearing; Certified Language Interpreter) with only minor conforming changes.
New §43.224 of this title (relating to Dismissal without Hearing) primarily readopts the provisions of current §43.38 of this title (relating to Dismissal without Hearing) with only minor conforming changes.
New §43.225 of this title (relating to Summary Disposition) primarily readopts the provisions of current §43.39 of this title (relating to Summary Disposition) but changes the deadline for filing a motion for summary disposition from 25 days before the hearing on the merits to 30 days before the hearing. This change is necessary to ensure non-SOAH hearings conform with SOAH hearings on key procedural deadlines and provide sufficient time for the administrative law judge to consider the motion prior to the hearing on the merits.
New §43.226 (relating to The Record) readopts the provisions of current §43.40 of this title (relating to The Record).
New §43.227 (relating to Findings of Fact) readopts the provisions of current §43.41 of this title (relating to Findings of Fact).
New §43.228 of this title (relating to Reopening of Hearing) readopts some provisions of current §43.42 of this title (relating to the Reopening of Hearing) but removes provisions relating to reopening the hearing after the administrative law judge issues a PFD and the executive director or board of trustees have begun to consider the appeal. Because new §43.228 only applies at the contested case level, these elements of current §43.42 have been readopted in provisions related to those later stages of the appeal process.
New §43.201 through new §43.228 are adopted to be included in adopted new Subchapter C (relating to Hearings Not Docketed at SOAH) of Chapter 43 of TRS rules.
New §43.301 of this title (relating to Proposals for Decision and Exceptions) readopts subsection (b) of current §43.45 of this title (relating to Proposals for Decision, Exceptions, and Appeals to the Board of Trustees). In addition, new §43.301 further clarifies the exceptions process after an ALJ issues a proposal for decision after a contested case. Specifically, new §43.301 provides that exceptions shall be filed with and reviewed by the ALJ, not the executive director, and the ALJ shall inform TRS whether any action was taken pursuant to the parties' exceptions.
New §43.302 of this title (relating to Decision of Executive Director) readopts, in part, subsections (c), (e), (h), and (i) of current §43.45 of this title to the extent the provisions involve the duties of the executive director after an ALJ issues a proposal for decision to TRS. New §43.302 also adds provisions to clarify the executive director's authority to remand a case to the administrative law judge and to modify a proposal for decision if a finding of fact is against the weight of the evidence.
New §43.303 of this title (relating to Proposals for Decision and Exceptions regarding Eligibility for Disability Retirement) readopts, in part, subsections (c), (h), and (i) of current §43.45 of this title as they relate to the duties of the board of trustees to review an ALJ's proposal for decision in a case relating to a member's eligibility for disability retirement. New §43.303 primarily expands upon these provisions to provide for the procedure for a proposal for decision to be reviewed by the board of trustees in such a case. The new procedures are similar to those followed by the executive director in a pension appeal not related to eligibility for disability retirement.
New §43.304 of this title (relating to Appeals to the Board of Trustees) readopts, in part, subsections (c) through (i) and (k) of current §43.45 of this title as they relate to the duties of the board of trustees when reviewing a decision of the executive director. In addition, new §43.304 makes several member-friendly changes to the board of trustees' portion of the appeals process. These changes include providing all parties with the opportunity to submit written briefs or exceptions to the board of trustees in every appeal to the board, not only those appeals when the executive director made a change to the ALJ's proposal for decision. The changes also include offering the parties the opportunity to express their preference on whether oral argument is needed in a case and delegates the determination on whether to have oral argument from the board to the executive director in consultation with the chairman of the board of trustees in order to expedite the decision-making process on that issue. Lastly, similar to the changes made in new §43.302 of this title, new §43.304 also adds provisions to clarify the board of trustees' authority to remand a case to the administrative law judge and to modify a proposal for decision if a finding of fact is against the weight of the evidence.
New §43.305 of this title (relating to Final Decision of TRS) readopts subsection (j) of current §43.45 of this title.
New §43.306 of this title (relating to Rehearings) primarily readopts current §43.46 of this title (relating to Rehearings) but also clarifies that the deputy director may also act upon a motion for rehearing or other related motions when the deputy director makes a decision not to docket an appeal in accordance with adopted new §43.105 of this title.
New §43.307 of this title (relating to Cost of Preparing Administrative Record) readopts current §43.48 of this title (relating to Cost of Preparing Administrative Record).
New §43.301 through new §43.307 are adopted to be included in adopted new Subchapter D (relating to Final Decisions of TRS) of Chapter 43 of TRS rules.
COMMENTS
No comments on the proposed new rules were received.
SUBCHAPTER A. GENERAL ADMINISTRATION
STATUTORY AUTHORITY
The new rules are adopted under the authority of Government Code §825.102, which authorizes the Board to adopt rules for eligibility for membership, the administration of the funds of the retirement system, and the transaction of business of the Board; Government Code §825.115(b), which authorizes the Board to adopt rules relating to the authority of the Board to make a final decision in a contested case or delegate its authority.
CROSS-REFERENCE TO STATUTE
The new rules affect the following statutes: Government Code §825.115, which authorizes the Board to adopt rules relating to the authority of the Board to make a final decision in a contested case or delegate its authority.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on December 13, 2024.
TRD-202406027
Don Green
Chief Financial Officer
Teacher Retirement System of Texas
Effective date: January 2, 2025
Proposal publication date: October 11, 2024
For further information, please call: (512) 542-6506
STATUTORY AUTHORITY
The new rules are adopted under the authority of Government Code §825.102, which authorizes the Board to adopt rules for eligibility for membership, the administration of the funds of the retirement system, and the transaction of business of the Board; Government Code §825.115(b), which authorizes the Board to adopt rules relating to the authority of the Board to make a final decision in a contested case or delegate its authority; Government Code §825.521, which provides that in adopting rules relating to appeals of a determination or decision of the retirement system by the system's staff, the board of trustees shall ensure that rules establishing deadlines for the filing of an appeal afford a member or retiree at least the same amount of time to file an appeal as the retirement system has to issue the retirement system's decision; and Section 12 of House Bill 1585, as enrolled by the 87th Texas Legislature, Regular Session, on May 13, 2021 and effective on May 26, 2021.
CROSS-REFERENCE TO STATUTE
The new rules affect the following statutes: Government Code §825.115, which authorizes the Board to adopt rules relating to the authority of the Board to make a final decision in a contested case or delegate its authority and Government Code §825.521, which provides that in adopting rules relating to appeals of a determination or decision of the retirement system by the system's staff, the board of trustees shall ensure that rules establishing deadlines for the filing of an appeal afford a member or retiree at least the same amount of time to file an appeal as the retirement system has to issue the retirement system's decision
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on December 13, 2024.
TRD-202406028
Don Green
Chief Financial Officer
Teacher Retirement System of Texas
Effective date: January 2, 2025
Proposal publication date: October 11, 2024
For further information, please call: (512) 542-6506
STATUTORY AUTHORITY
The new rules are adopted under the authority of Government Code §825.102, which authorizes the Board to adopt rules for eligibility for membership, the administration of the funds of the retirement system, and the transaction of business of the Board; and Government Code §825.115, which authorizes the Board to adopt rules relating to the authority of the Board to make a final decision in a contested case or delegate its authority and to refer a contested case to a hearing officer not affiliated with the State Office of Administrative Hearings.
CROSS-REFERENCE TO STATUTE
The new rules affect the following statutes: Government Code §825.115, which authorizes the Board to adopt rules relating to the authority of the Board to make a final decision in a contested case or delegate its authority and to refer a contested case to a hearing officer not affiliated with the State Office of Administrative Hearings.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on December 13, 2024.
TRD-202406029
Don Green
Chief Financial Officer
Teacher Retirement System of Texas
Effective date: January 2, 2025
Proposal publication date: October 11, 2024
For further information, please call: (512) 542-6506
STATUTORY AUTHORITY
The new rules are adopted under the authority of Government Code §825.102, which authorizes the Board to adopt rules for eligibility for membership, the administration of the funds of the retirement system, and the transaction of business of the Board; Government Code §825.115(b), which authorizes the Board to adopt rules relating to the authority of the Board to make a final decision in a contested case or delegate its authority; Government Code §825.521, which provides that in adopting rules relating to appeals of a determination or decision of the retirement system by the system's staff, the board of trustees shall ensure that rules establishing deadlines for the filing of an appeal afford a member or retiree at least the same amount of time to file an appeal as the retirement system has to issue the retirement system's decision; and Section 12 of House Bill 1585, as enrolled by the 87th Texas Legislature, Regular Session, on May 13, 2021 and effective on May 26, 2021.
CROSS-REFERENCE TO STATUTE
The new rules affect the following statutes: Government Code §825.115, which authorizes the Board to adopt rules relating to the authority of the Board to make a final decision in a contested case or delegate its authority and Government Code §825.521, which provides that in adopting rules relating to appeals of a determination or decision of the retirement system by the system's staff, the board of trustees shall ensure that rules establishing deadlines for the filing of an appeal afford a member or retiree at least the same amount of time to file an appeal as the retirement system has to issue the retirement system's decision.
The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.
Filed with the Office of the Secretary of State on December 13, 2024.
TRD-202406030
Don Green
Chief Financial Officer
Teacher Retirement System of Texas
Effective date: January 2, 2025
Proposal publication date: October 11, 2024
For further information, please call: (512) 542-6506