PART 7. STATE OFFICE OF ADMINISTRATIVE HEARINGS

CHAPTER 159. RULES OF PROCEDURE FOR ADMINISTRATIVE LICENSE SUSPENSION HEARINGS

The State Office of Administrative Hearings (SOAH) proposes amendments to the following sections of Texas Administrative Code, Title 1, Part 7, Chapter 159, Rules of Procedure for Administrative License Suspension Hearings:

Subchapter A, General, §159.1, Scope; §159.3, Definitions; and §159.7, Other SOAH Rules of Procedure.

Subchapter B, Representation, which is proposed to be retitled as Case Administration; §159.51 concerning Withdrawal of Counsel, which is proposed to be retitled as Jurisdiction; proposing a new §159.53 concerning Filing Documents; proposing a new §159.55 concerning Service of Documents on Parties; proposing a new §159.57 concerning Representation of the Parties; proposing a new §159.59 concerning Withdrawal and Substitution of Counsel; and proposing a new §159.61 concerning Electronic Case Records Access.

Subchapter C, Witnesses and Subpoenas, §159.101, Subpoenas Generally; §159.103, Issuance and Service of Subpoenas; and proposing a new §159.104, Witness Fees.

Subchapter D, Discovery, §159.151 Prehearing Discovery.

Subchapter E, Hearing and Prehearing, §159.201, Scheduling and Notice of Hearing; §159.203, Waiver or Dismissal of Hearing; §159.207, Continuances; §159.209, Participation by Telephone or Videoconference; proposing a new §159.210 concerning Hearing on Written Submission; §159.211 Hearings; and §159.213 Failure to Attend Hearing and Default.

Subchapter F, Disposition of Case, §159.253, Decision of the Judge; proposing a new §159.254 concerning Correction of Final Decision; §159.255 Appeal of Judge's Decision; and proposing a new §159.257 concerning Disposition of Criminal Charges and Expunction of Records.

Background and Purpose.

The State Office of Administrative Hearings (SOAH) was established in 1991 as an independent and impartial forum for conducting adjudicative hearings in the executive branch of Texas state government. The purpose of SOAH is to separate the adjudicative function from the investigative, prosecutorial, and policymaking functions of state agencies. In fulfillment of this mission, SOAH employs over 50 administrative law judges (judges or ALJs) statewide who conduct an average of 25,000 contested case hearings each year on behalf of over 60 state agencies and other governmental entities. The largest portion of SOAH's caseload is comprised of hearings on the administrative suspension or revocation of a person's driver's license by the Texas Department of Public Safety (DPS or the Department) relating to an arrest for driving under the influence of alcohol or controlled substances, and for violations of the Texas "no-refusal" law. These short hearings are civil administrative proceedings that are separate and independent from any criminal court proceedings relating to the same arrest. The purpose of the proposed rule amendments is to update and modify the procedural rules for these administrative driver's license revocation (ALR) hearings at SOAH.

SOAH's procedural rules for ALR hearings in Title 1, Chapter 159 of the Texas Administrative Code have not been updated since 2017, despite significant changes in case-handling procedures that have occurred as the result of SOAH's 2015 Sunset Advisory Commission Report, the passage of H.B. 2154, 84th R.S. (2015), and SOAH's implementation of various technology improvements in the handling of case records and hearings. The proposed rule amendments relate to the transfer of responsibility for the scheduling of ALR hearings from DPS to SOAH; SOAH's implementation of a modern automated case management system that relies on an all-electronic administrative case record; SOAH's adoption of the Texas judiciary's eFile Texas platform for electronic filing and service; the online availability of ALR case records through the Texas judiciary's re:SearchTX platform; and the predominant use of videoconference technology as an efficient and effective means for conducting ALR hearings.

Many of the proposed new rules relate to electronic filing requirements. The Texas Supreme Court mandated the implementation of electronic filing (e-filing) for all civil cases starting in 2012, and the Texas Court of Criminal Appeals mandated e-filing for criminal cases starting in 2017. Today, nearly all civil and criminal courts in Texas have implemented the use of e-filing services. According to a report by the Legislative Budget Board, the benefits cited from the mandated use of e-filing include quicker court access to electronic documents, reduced storage costs for court clerks, and reduced printing and mailing costs for attorneys and litigants. SOAH recognizes the inherent efficiencies and cost-savings gained through the use of e-filing and has adopted the Texas judiciary's eFile Texas platform in compliance with SOAH's statutory mandate to implement technological solutions to improve the agency's ability to perform its functions.

SOAH adopted the use of the eFile Texas statewide electronic filing system in March of 2020 for general docket cases. E-filing was then later implemented for ALR cases in June of 2022. The docketing and scheduling of ALR cases was also formally transferred from DPS to SOAH beginning in June of 2022, consistent with the requirements section 524.033 of the Texas Transportation Code and the recommendations contained in SOAH's 2015 Sunset Advisory Commission Report. As a result of these changes, it is now necessary to conform SOAH's rules for ALR proceedings to the electronic filing standards required for other SOAH cases and the judicial courts. The proposed amendments reflecting these developments are substantially similar to practices already in use. Other changes in procedure are proposed to promote best practices in the handling of ALR cases, and to conform the rules to standing orders of the Chief Administrative Law Judge and SOAH's current case-handling practices.

Section-by-Section Summary.

Subchapter A

Section 159.1 Scope, is amended to clarify that certain provisions of the Texas Transportation Code apply to ALR proceedings at SOAH. These include §524.002 (relating to conflicts between SOAH's rules of procedure and the Administrative Procedure Act), §524.012(e) (relating to the separate nature of ALR proceedings from the adjudication of a criminal charge arising from the same occurrence). A new subsection (d) is added to identify other authority, including the Texas Rules of Civil Procedure and applicable case law, that may be applied by an ALJ when resolving procedural issues that are not otherwise addressed by the Transportation Code or SOAH rule. This codifies the practice already used by SOAH judges and mirrors a nearly identical provision in 1 Texas Administrative Code §155.3 of SOAH's Rules of Procedure for general docket cases.

Section 159.3 Definitions, is amended to add and modify the definition of certain terms as used in Chapter 159. These include several new defined terms relating to electronic filing, the use of Research Texas (a.k.a. re:SearchTX) as SOAH's online repository for ALR case records, clarification of what constitutes "videoconference" consistent with definition given by the Texas Department of Information Resources given in Title 1, §209.1 of the Texas Administrative Code, and the incorporation by reference of certain additional terms from SOAH's Rules of Procedure for general docket cases in 1 Texas Administrative Code §155.5.

The proposed changes to §159.7, Other SOAH Rules of Procedure, amend the list of SOAH rules incorporated from Title 1 Chapter 155 of the Texas Administrative Code to also incorporate by reference SOAH's general requirements for the filing of documents, confidential information, service of documents, representation of parties, and the withdrawal of counsel. Incorporation of these rules by reference is intended to make the process of filing and serving documents, and the requirements for legal representation and withdrawal of counsel, more consistent with how these issues are handled in SOAH's general docket cases and by the civil judicial courts.

Subchapter B

Subchapter B relating to withdrawal of counsel is amended in its entirety to instead address various topics relating to general ALR case administration.

The proposed changes to §159.51 describe the rules of procedure relating to SOAH's jurisdiction over a particular ALR case. Subsection (a) describes the process by which SOAH acquires jurisdiction upon the successful transmission of case information from DPS to the SOAH Chief Clerk's Office. Subsection (b) describes the effect of SOAH's acquisition of jurisdiction as to certain case events, such as scheduling of the hearing and the commencement of discovery. Subsection (c) provides that time periods under SOAH's rules of procedure do not commence until SOAH initially schedules a hearing. Subsection (d) provides that SOAH's jurisdiction over a particular ALR case ends with the ALJ's final decision, the ALJ's order of dismissal, or when the deadline to file a motion to vacate a default decision has passed. This is required for consistency with section 2003.051 of the Texas Government Code, which states that SOAH's jurisdiction over a case ends when SOAH has issued a decision or otherwise concluded its involvement. Subsection (e) is intended to address a common misunderstanding about the limits of SOAH's authority by clarifying that SOAH has no continuing authority to enforce or correct DPS actions relating to an ALR case once SOAH has lost jurisdiction over the case.

A new §159.53 is proposed to establish the requirements for filing documents.

Subsection (a) of §159.53 incorporates by reference SOAH's general docket filing rules in 1 Texas Administrative Code §155.101 and §155.103.

Subsection (b) of §159.53 describes the methods of filing depending on whether the filer is an attorney or a self-represented defendant. Subsection (b)(1) requires defense counsel and DPS to use eFile Texas or another electronic filing and service provider approved by the Office of Court Administration. Electronic filers are required to ensure that party information, the designation of lead counsel, and service contact information are all correctly entered into the electronic filing manager so that SOAH has complete and accurate contact information for the parties to the case. Documents submitted for electronic filing in ALR cases must be properly titled and filed using the filing codes that are appropriate for the type of document to ensure that SOAH and the parties can reasonably ascertain the content filings.

Subsection (b)(2) of §159.53 encourages but does not require Defendants without an attorney to use electronic filing. Self-represented litigants are permitted to use alternative filing methods of email, fax, regular mail, or hand-delivery.

Subsection (c) of §159.53 establishes certain requirements that apply to all filers: (1) all parties must provide and maintain a current mailing address and email address on file as part of the administrative record; (2) pleadings and motions must be in writing, signed, and filed with the SOAH Chief Clerk's Office; and (3) different types of documents must be submitted separately for filing.

Of particular importance, subsection (c)(4) of §159.53 adopts SOAH's current requirement for filings in ALR proceedings to be filed confidentially to guard against the public disclosure of confidential or personal identifying information that is typically included in ALR case records, such as driver's license numbers and dates of birth. This confidential filing requirement helps to improve the efficiency of ALR proceedings by avoiding the need for the parties to review and redact confidential information from documents prior to filing, and it allows judges and the parties to more readily access the information that is necessary for resolution of the case.

Subsection (c)(5) of §159.53 pertains to the requirements for submission of exhibits, including a requirement that all exhibits should be pre-filed at least two days before the hearing.

A new §159.55, Service of Documents on Parties, is proposed to establish the requirements for service of documents in ALR cases. Subsection (a) provides that documents filed at SOAH must be sent to each party or the party's lead counsel on the same date using the methods provided by rule. Subsection (b) requires DPS and defense counsel to assume primary responsibility for entering the parties' service contact information into eFile Texas for the purpose of receiving notices, orders, decisions, and other case-related communications. Subsection (c) establishes electronic service as the primary method of service if the email address of the party or attorney to be served is on file with the record of the case. For parties without an email address on file in the electronic filing manager, alternative methods may be used, including mail, fax, and hand-delivery. Additionally, self-represented litigants who choose not to use eFile Texas may use alternative methods of service to provide documents to DPS. Service of audio and visual exhibits may be satisfied if audiovisual evidence was properly filed under §159.53, and access to the exhibits is shared with the party or attorney to be served. Subsection (d) establishes the requirement and format for including a certificate of service with each document filed. Subsection (e) addresses the methods of proof of service depending on the nature of the filing and whether the email address of the party is on file with the record of the case.

A proposed new subsection (f) of §159.55 provides that SOAH-issued orders are considered received upon SOAH's electronic transmission of the order to eFile Texas if the recipient's email address is on file with the record of the case in eFile Texas. This is already SOAH's current practice, tracks the language of Rule 21a(b)(3) of the Texas Rules of Civil Procedure, and is consistent with applicable case law regarding the electronic delivery of documents. Because parties are required by various provisions of the proposed §159.53 to provide and maintain a valid email address on file with the record of the case for the electronic delivery of documents and other case related communications, the proposed §159.55(f) will eliminate any ongoing confusion or concern as to the timing of when SOAH orders are considered to be delivered to and received by the parties.

Section 159.57, Representation of the Parties, is proposed to establish and clarify the process for attorneys to enter an appearance or otherwise designate their representation of a party in an ALR proceeding. The proposed rule is similar to SOAH Rule §155.201 for general docket cases. Subsection (a) provides that a party may employ an attorney, or they may appear on his- or her-own behalf. Reference is made to resources that are available on SOAH's website to assist self-represented defendants. The rule also clarifies that SOAH cannot provide a self-represented litigant with legal advice or appoint an attorney to represent them. Subsection (b) requires defense counsel who have not otherwise entered an appearance on behalf of a party to file a basic notice of representation in the record. This rule is intended to formalize the process for attorneys to enter an appearance in ALR cases and is necessary to avoid situations where SOAH has no notice on the face of the administrative record that a defendant is represented by an attorney. Subsection (c) establishes rules relating to the parties' designation of lead counsel, which is essential for SOAH judges to identify the attorney responsible for the case, ensure that counsel receives appropriate notice of filings and other case-related communications, and to enable the use of eFile Texas and re:SearchTX by DPS attorneys and defense counsel.

Section 159.59, Withdrawal and Substitution of Counsel, replaces the current Rule §159.51 relating to withdrawal of counsel in ALR cases. The amended rule is similar to SOAH Rule §155.203 for general docket cases and Rule 10 of the Texas Rules of Civil Procedure. Subsection (a) sets forth the requirements for defense counsel to file a motion to withdraw and the contents of the motion. This is intended to ensure that sufficient information is provided to SOAH, the defendant, and/or the substituting attorney to provide for the fair and efficient handling of the withdrawal or substitution. Subsection (b) requires the motion to withdraw to be served on all parties and include a certificate of conference. Subsection (c) provides that the withdrawing attorney remains as the defendant's attorney of record until the motion has been granted. Subsection (d) describes the actions that must be taken by the withdrawing attorney once the motion is granted, including notifying the defendant or substituting attorney of any settings or deadlines. Subsection (e) describes the requirements for defense counsel to update the service contact and lead counsel information for the case within eFile Texas upon the withdrawal or substitution of counsel. Subsection (f) establishes the process by which one DPS attorney may be substituted for another, either at the hearing or by notice to the defendant. The process required for substitution of DPS counsel is abbreviated and less formal because DPS is always represented by the Department's counsel, ALR prosecutors are often assigned to cases based on the scheduled hearing date or county of arrest rather than on a case-by-case basis, and the defendant's choice of legal representation is not implicated by a change in DPS counsel.

Section 159.61, Electronic Case Records Access, proposes a new section related to electronic case records access. The records of ALR cases have been made available online to the parties since June of 2022 through Research Texas (re:SearchTX). Re:SearchTX is an electronic court records repository that is connected to eFile Texas and hosted by the State of Texas through a vendor contracted by the Office of Court Administration. It offers a web-based platform that allows registered users to view and download ALR case records for the SOAH cases that they are authorized to access. When a document is electronically filed in an ALR case at SOAH, a copy of the filing is automatically uploaded and retained in re:SearchTX. Online access to locate, view, and download ALR case records at SOAH is publicly available at no cost. This self-service platform allows defendants, defense counsel, and DPS attorneys to easily access the case filings and records for their ALR cases, eliminating the need for parties to submit requests to SOAH under the Texas Public Information Act to obtain copies of case records.

Subsection (a) of §159.61 states that the records of ALR proceedings are available online through re:SearchTX. Subsection (b) describes the accuracy and completeness of the electronic case records available through re:SearchTX, and provides notice of which particular portions of ALR case records may not be included. These include audio recordings of the hearing, exhibits that were not included as part of the administrative record, audio and video exhibits, and the written transcript, if any.

Because ALR case records are filed confidentially as described under the proposed §159.53(c)(4), users of re:SearchTX are only allowed to access records of the ALR cases for which they have an approved security role within eFile Texas. Access to records in re:SearchTX is controlled by the parties, who must take appropriate actions within eFile Texas to establish access to their own case records within re:SearchTX. Subsection (c) of §159.61 explains technical aspects of how re:SearchTX uses role-based access to maintain the security of confidential records, and lists the requirements for how defendants, lead counsel, and members of lead counsel's firm may obtain access to ALR case records through re:SearchTX based on their assigned role within eFile Texas. Most technical difficulties experienced by users of re:SearchTX are the result of the user's own failure to correctly establish their case role within eFile Texas in accordance with requirements listed in subsection (c).

Subsection (d) of §159.61 establishes SOAH's expectation for attorneys who appear before SOAH in ALR cases to establish access to re:SearchTX and maintain a sufficient level of technical competence to use eFile Texas and re:SearchTX to monitor case activity and obtain copies of case records for the cases to which they are assigned. SOAH's intent with this rule is not only to promote the greater access and efficiency afforded to litigants by the re:SearchTX system, but also to set SOAH's expectations for attorney conduct in ALR proceedings with respect to electronic records administration. Unfortunately, SOAH has often observed substandard records management practices by counsel and their legal support staff in ALR cases, including failure to properly associate lead counsel with the record of the case, failure to establish a law firm profile for electronic records access, failure to monitor the email address of record for electronic service of process, failure to update service lists, failure to download or retain electronic copies of case filings, and an unprofessional over-reliance on SOAH's records staff for document retrieval, case status monitoring, and assistance with hearing preparation. The development of technical competence in using re:SearchTX as a tool for supporting the records management practices of attorneys and law firms can help to promote greater efficiency and professionalism in the handling of ALR cases.

Subchapter C

Subchapter C relates to witnesses and subpoenas. SOAH's proposed amendments to these rules are intended to update certain language to reflect the prevalent use of videoconference technology as a method of appearance for conducting ALR hearings, and to codify certain best practices with respect to subpoenas.

Section 159.101 relates to Subpoenas Generally, is clarified to update language relating to the "appearance" of subpoenaed witnesses at a hearing.

Section 159.103 relates to Issuance and Service of Subpoenas. This section is amended by reorganizing and updating the rule and breaking it into two rules for clarity by adding a new §159.104 relating to witness fees.

Subsection (a) of §159.103 is amended by removing instructions regarding the methods of serving subpoenas and relocating those provisions to a revised subsection (c) relating to methods of service. Information regarding payment of the costs for subpoenaed documents or items is relocated from the current §159.103(f) to §159.103(a).

Subsection (b) of §159.103 is amended to require the service of subpoenas to include a copy of the notice of hearing or other information sufficient notifying the witness of how to appear, including any information required to access a videoconference or join a teleconference call. This is considered a best practice and is intended to avoid situations where a subpoenaed witnesses has not been given sufficient information to comply with the subpoena or participate in the hearing.

Subsection (c) of §159.103 is amended by replacing information about return of service and witness fees with a new subsection relating to the methods of service for subpoenas. The introductory clause of subsection (c) republishes language from the current §159.103(a) requiring the service of subpoenas and discusses who may serve a subpoena.

Subsection (c)(1) of §159.103 provides that subpoenas may be served on a witness's attorney if they are represented by an attorney.

Subsection (c)(2) of §159.103 relates to the service of subpoenas when a witness is a peace officer and amends the current rule to designate the service of peace officers through their law enforcement agency as the primary method of service, rather than as an alternative method of service. This change is necessary to encourage the delivery of subpoenas to the officer at their employing law enforcement agency, rather than at their personal home address. As a matter of public policy, the home address of peace officers is treated as confidential under Texas law in accordance with sections 552.117-.1175 of the Texas Government Code and section 25.025 of the Tax Code. Therefore, the preferred, and often the most effective, method of service is through the peace officer's employing law enforcement agency. If the peace officer's law enforcement agency does not have an accepted method for receipt of service of subpoenas, then the proposed rule would allow the subpoena to be served by delivering a copy to the witness. Information requiring the filing of the return of service is moved to subsection (d), and information regarding the payment of witness fees is relocated to §159.104.

Subsection (d) of §159.103 requires a copy of the subpoena to be filed along with the return of service at least three days prior to the hearing. Filing of a copy of the subpoena with SOAH is necessary for the judge to be able to ascertain whether the subpoena was properly served. Information from the existing subsection (d) regarding the payment of witness fees is relocated to §159.104.

Subsection (e) of §159.103 is amended to codify SOAH's current practice of allowing a subpoenaed witnesses to appear by telephone or videoconference when the witness resides or works more than 150 miles from the designated hearing location. This practice is consistent with Rule 176 of the Texas Rules of Civil Procedure, which states that a person may not be compelled to appear in a county that is more than 150 miles from where the person resides or is served. The current language of §159.103(e) relating to the payment of witness fees in the event of a default is relocated to §159.104 relating to witness fees.

Subsection (f) of §159.103 is amended to eliminate the current requirement for a party seeking the admission of documents or other tangible items to provide any special equipment required to offer the items into evidence. SOAH has not observed any continuing need for the use of special equipment in ALR hearings, and therefore this rule is no longer necessary. Moreover, the proposed rule in §159.53(c)(5)(D) requiring audiovisual evidence to be presented in a common, non-proprietary file format without the need for special equipment or software should eliminate the need for proprietary software or special video players to view dash-cam or body-cam footage for ALR proceedings. Subsection (f) is also amended to clarify that any subpoenaed documents or other evidence must be pre-filed in the same manner as other exhibits.

A proposed new §159.104 relates to witness fees. This new provision relocates information relating to the payment of witness fees and mileage reimbursement from the current §159.103 to its own section so that all witness fee information is together in one place.

Subsection (a) of §159.104 republishes language from the current §159.103(c) regarding the payment of witness fees. The provision is also amended to recognize that the witness may waive payment of the fee.

Subsection (b) of §159.104 republishes language from the current §159.103(c) regarding the payment of mileage reimbursement if the witness travelled more than 25 miles round-trip to attend the hearing. The website address for the Comptroller of Public Accounts where travel rates can be found is updated.

Subsection (c) of §159.104 clarifies that if the witness is a peace officer, then any amounts for the payment of witness fees and travel expenses should be sent to the attention of the peace officer's employing law enforcement agency. This is consistent with current practice and should resolve any ongoing confusion about the proper method for payment of witness fees when a witness is a peace officer.

Subsection (d) of §159.104 republishes language from the current §159.103(d) relating to procedures for the payment of witness fees when the hearing is conducted by teleconference and updates the rule to also refer to videoconference.

Subsection (e) of §159.104 republishes language from the current §159.103(e) relating to procedures for the payment of witness fees when the party who served the subpoena fails to appear for the hearing.

Subsection (f) of §159.104 provides that the process for the handling of witness fees and mileage reimbursement if a subpoena request is denied or a subpoena is quashed are governed by §159.105.

Subchapter D

Subchapter D relates to discovery, and §159.151 relates to prehearing discovery.

The proposed amendment to subsection (a) of §159.151 is intended to update the prehearing discovery rule for consistency with §159.51(b) of Subchapter B relating to the effect of SOAH's acquisition of jurisdiction over an ALR case. With the proposed amendment, both §159.51 and §159.151 will uniformly state that the parties may initiate discovery only after SOAH acquires jurisdiction and schedules a hearing.

Subsection (c) of §159.151 is amended to clarify that the discovery rules of the Texas Rules of Civil Procedure that require initial disclosures without awaiting a discovery request (TRCP Rules 194 and 195) do not apply to ALR proceedings at SOAH.

The proposed amendment to subsection (f) of §159.151 would update the method of service used by defendants to serve discovery requests to DPS by requiring electronic service to the email addresses on file for the Department with the record of the case. This change is consistent with the proposed changes to §159.55 (relating to Service of Documents on Parties) to facilitate the use of electronic filing and service.

The proposed amendment to subsection (i) of §159.151 would remove the limitation on the number of continuances that may be granted due to the late production of documents through discovery. Removal of this limitation will afford SOAH judges the discretion to grant additional discovery-related continuances if warranted under the circumstances of the case.

The proposed amendment to subsection (j) of §159.151 would require DPS to inform the defendant of the identity of the person or entity from whom the defendant may obtain discovery of records relating to the inspection, maintenance, or repair of an instrument used to test the defendant's breath specimen if the Department does not have actual possession of those records at the time of a discovery request.

The proposed amendment to subsection (k) of §159.151 would clarify that a subpoena for the production of documents from a third party must allow the third party an option to produce the documents in lieu of personal appearance at the hearing, unless they have also been subpoenaed to give testimony at the hearing. The intent of this provision is to avoid undue delay of a hearing or unnecessary inconvenience to third parties that could result from requiring personal appearances in lieu of production of documents, For example, it is unnecessary to require the personal appearance of a 911 operator if the recording of the relevant 911 call can be produced. The proposed language is also consistent with Rule 176.6(c) of the Texas Rules of Civil Procedure.

Subchapter E

Subchapter E relates to hearing and prehearing procedures. The proposed amendments to this section are intended to update the procedural rules to reflect current ALR practice before SOAH, codify best practice for ALR hearings, and improve consistency with other changes to these rules of procedure.

Rule §159.201 relates to the scheduling and notice of hearing. Subsections (a), (b), and (c) of §159.201 are amended to reflect the fact that SOAH has now assumed the primary responsibility from DPS for the scheduling of ALR hearings. This transfer of authority was completed on June 1, 2022, as the result of SOAH's 2015 Sunset Advisory Commission Report, the passage of H.B. 2154, 84th R.S. (2015), and §524.033 of the Transportation Code.

Subsections (a) and (b) of §159.201 are amended to provide that once SOAH acquires jurisdiction over a case, SOAH's current practice is to schedule a hearing at the earliest possible date in a prompt, fair, and cost-effective manner, taking into consideration the feasibility of videoconferencing. Subsection (b) of §159.201 also provides that SOAH will attempt to schedule cases together by geographic region based on the county of arrest.

Subsection (c) of §159.201 is amended to delete the reference to DPS as the entity issuing the notice of hearing for a telephone or videoconference hearing. Under current practice, DPS usually issues the initial notice of hearing, but any subsequent scheduling orders relating to the same case are issued by a SOAH judge as the result of SOAH having assumed responsibility for the scheduling of hearings from DPS. Amendments to this section would also apply the current requirement for videoconference and teleconference hearings to be rescheduled only by the filing of a continuance or agreement of the parties to all scheduled hearings without regard to the method of appearance.

Subsection (d) of §159.201 is amended to clarify that the notice of hearing is presumed to have been "served" (rather than mailed) to the defendant on the date it was issued. This is because service may be established through a variety of methods, and not only by mail.

Subsection (e) of §159.201 is added to state that SOAH will provide timely access to ALR case scheduling information on the agency's website. This is reflected in the rules to describe SOAH's current practice and to comply with §524.033(c)(2) of the Texas Transportation Code.

Section 159.203 relates to the waiver or dismissal of a hearing.

Subsection (b) of §159.203 is amended to clarify the method by which SOAH and the defendant are notified when a case is rescinded by DPS: DPS is required to file a notice of rescission in the docket of the SOAH case.

A new subsection (c) of §159.203 is proposed to establish a new procedure for involuntary dismissal. Both the Texas Rules of Civil Procedure and SOAH's Rules of Procedure for general docket cases allow various forms of involuntary dismissal. Yet despite the statutory scheme requiring the prompt disposition of ALR cases, SOAH currently has no consistent procedure for dismissing ALR cases when the resolution of a case is unreasonably delayed. The majority of ALR cases are currently resolved within 90 days, with fewer than 5% of all cases requiring three or more continuances. Because ALR cases are capable of being resolved so quickly, a delay of more than 90 days is unusual and potentially unreasonable depending on the circumstances. The new subsection (c) of §159.203 is proposed to establish a process by which an ALR case may be involuntarily dismissed from SOAH's docket if the case is either inactive for a period of 120 days, or the judge finds that the parties are unable to prepare for hearing after multiple continuances.

Subsection (c)(1) of §159.203 would require the judge's order of involuntary dismissal to be sent to the parties at least 15 days prior to the dismissal, and would further require the order to inform the parties of the reason for the dismissal and the process to seek reinstatement of the case. Subsection (c)(2) would allow the judge to grant a motion to reinstate the case if the moving party shows a valid and compelling reason for the delay or inaction, or the judge finds that extraordinary circumstances exist that require an exception. A dismissal under this section removes the case from SOAH's docket and rescinds the suspension without a decision on the merits. This proposed form of involuntary dismissal is fair to both parties and has the same effect as when a case is rescinded by DPS under the current 37 Texas Administrative Code §37.6.

Sedtion 159.207 relates to continuances.

Subsection (a) of §159.207 is amended to remove the former requirement for DPS to notify SOAH when a statutory "5-day" continuance is filed under section 524.032(b) of the Transportation Code. The proposed amendment is necessary to conform to current practice. Now that the scheduling of cases has been transferred to SOAH, continuance requests are filed with SOAH (not DPS) and SOAH automatically reschedules the case in response to a 5-day continuance.

Subsection (b) of §159.207 is amended for consistency with current practice to clarify that a judge may grant a continuance if the motion for continuance is supported by good cause, consent of the parties, or operation of law. SOAH has historically granted continuances for these reasons, but the current rule only references a continuance due to the unavailability of a subpoenaed witness.

Subsection (c) is amended to recognize that SOAH judges do not have discretion with respect to a statutory "5-day" continuance filed under section 524.032(b) of the Transportation Code. Consistent with current practice, this subsection is also amended to allow continuances to be filed in writing or presented orally at the hearing. Motions for continuance must state the reason for the continuance, the number of prior requests for continuance, and if written, include a certificate of service and a certificate of conference.

Subsection (e) of §159.207 is added to require responses to a written motion for continuance to be promptly submitted in writing, but an oral motion for continuance may be responded to orally at the hearing.

Section 159.209 relates to participation by telephone or video conference. The amendments to this section are intended to update the procedural rules to recognize videoconferencing as the predominant method of appearance for ALR cases, to distinguish videoconferencing from telephone conferencing, and to implement best practices when using these technologies for ALR hearings.

Subsection (a) of §159.209 is amended to address the use of videoconference technology for ALR hearings and clarify the judge's ability to allow or require an ALR hearing to be conducted by videoconference, subject to certain limitations. Subsection (a)(1) requires that the notice of hearing for a videoconference hearing must include all the necessary log-in information for the parties to participate in the hearing and must also provide a back-up or alternative option for participants to connect to the hearing audio by telephone. This practice ensures that participants have fair notice and an opportunity to attend a videoconference hearing. Subsection (a)(2) provides that when a party objects to the use of videoconferencing, the judge must timely rule on the objection in a manner consistent with Rule 21d of the Texas Rules of Civil Procedure. This rule maintains consistency with current judicial practice when considering objections to videoconferencing as a method of appearance. Subsection (a)(3) provides that before a witness is allowed to give testimony by videoconference, the judge may require the witness to appear on camera during the entirety of their testimony.

Subsection (b) of §159.209 is amended to address the use of telephone conference calling for ALR hearings. The rule distinguishes teleconferencing from videoconferencing because teleconferencing imposes greater limitations on the presentation of evidence, the examination of witnesses, and how the hearing may be conducted. Subsection (b) is amended to clarify that the parties may file a motion or agreement of the parties requesting a teleconference hearing only after SOAH acquires jurisdiction of the case and the consent of both parties is required. Notice for a teleconference hearing must include the dial-in information for joining the teleconference and instructions for submitting documents and evidence to be considered at the hearing. Before a witness is allowed to give testimony by telephone, the judge will confirm the identity of the witness, which may require the witness to provide reasonable verification of their identity under oath.

Subsection (c) of §159.209 is amended to remove former requirements for parties to provide teleconference or videoconference numbers. This requirement is a remnant from a former time when the SOAH judge would place individual phone calls to each of the parties, and then attempt to join them together on a conference line. Today, SOAH uses modern conference hosting technology platforms for both videoconferencing and teleconferences. Under current practice, participants log-in or dial-in to join the hearing at the scheduled time and are then admitted to the proceeding by the judge.

Subsection (d) of §159.209 is amended to delete the specific reference for prefiling of documentary evidence in teleconference and videoconference hearings. Prefiling is now required for all ALR proceedings without regard to the method of appearance. The prefiling requirement for exhibits is restated in the proposed amendments to §159.53(c)(5)(A), while the process for review of new evidence introduced by a witness at the hearing is deleted and restated in the amendments to §159.211(c)(4) (relating to hearing procedures).

Subsection (e) of §159.209 relating to default of a telephone or videoconference hearing is deleted from this section and relocated with amended wording to §159.213 (relating to Failure to Attend Hearing and Defaults) so that rules relating to defaults are located together within the same rule.

A new §159.210 is proposed to establish procedures for a hearing on written submission. A hearing on written submission is an ALR hearing where the parties waive their right to present oral testimony and examine witnesses, and instead, the judge is asked to consider the evidence and issue a ruling based solely on the submitted pleadings, motions, and exhibits. Subsection (a) allows the parties to file a motion or notice of agreement for a hearing on written submission. The motion requires that the parties have filed and served or exchanged all evidence necessary for the resolution of the case. Subsection (b) provides that judges shall liberally grant requests to conduct hearings on written submission. Subsection (c) explains the parties' waiver of oral argument and cross-examination, and states that the administrative record is limited to only the pleadings, motions, exhibits, and orders filed in the case. Subsection (d) requires the judge to issue a written decision in the same manner as other ALR cases. The judge's decision is also subject to appeal in the same manner as other ALR cases.

Section 159.211 relates to hearing procedures generally. Subsection (a)(3) is amended to clarify the judge's authority and duty to conduct the hearing in a fair and expeditious manner, determine the order in which cases are heard, impose reasonable conditions on the length of time required for a hearing, and protect witnesses from abusive, repetitious, or prolonged questioning. Subsection (b) regarding application of the rules of evidence to ALR proceedings is amended to more accurately reflect that Texas Government Code §2001.081 provides for an expanded application of the rules of evidence to administrative proceedings. Subsection (c)(3) is amended to clarify that the judge may allow the testimony of witnesses to be taken by telephone or videoconference, provided that all parties have the opportunity to participate in the hearing. A new subsection (c)(4) is proposed to restate procedure for allowing a party to review any new evidence introduced by a witness that was not already prefiled. This relocates language from the current §159.209(d) (relating to documents reviewed by a witness in a telephone or videoconference hearing) so that these requirements are broadly applied to all ALR hearings, not just hearings conducted by videoconference or teleconference. Language of the current subsection (f) (relating to what happens if a defendant fails to make a timely request for an interpreter) is relocated to subsection (e). A new subsection (f) is proposed to document SOAH's current practice for how defense counsel and judges can address situations where defense counsel is scheduled to appear in more than one ALR hearing at the same time.

Section 159.213 relating to failure to attend a hearing and default is amended to update SOAH's current default rule for ALR cases. Under the current rule, only a defendant may be subject to default for a failure to appear. This is consistent with sections 524.036 and 724.044 of the Transportation Code, which state that when a defendant fails to appear for a hearing without good cause, the defendant waives their right to hearing. However, SOAH is required by Chapter 2003 of the Government Code to conduct hearings in a fair, independent, and impartial manner. Rule 155.501 of SOAH's rules of procedure for general docket cases, and Rule 156a of the Texas Rules of Civil Procedure, require a party-neutral procedure for what happens when a party fails to appear for the hearing. To this end, the proposed amendments to §159.213 would treat DPS and the defendant equally insofar as either party could potentially be found in default based on a failure to appear.

Subsection (a) of §159.213 is amended to state that if a party fails to appear for the hearing, the judge may proceed on a default basis on the judge's own motion or on the request of the opposing party.

As explained below, the current Subsection (b) (relating to requests to vacate a default) is renumbered as subsection (g). A new subsection (b) describing what constitutes a default for purposes of a telephone or videoconference hearing relocates and updates language from the current §159.209(e) (relating to participation by telephone or videoconference) so that these default procedures are described within the default rule. Under the proposed new subsection (b), if a participant either fails to attend a telephone or videoconference hearing or fails to exercise diligence to resolve any technical difficulties with attendance for a period of fifteen minutes after the scheduled time for the hearing, then they may be found in default. The proposed rule would extend the time to allow a party to attend a remote hearing from ten minutes to fifteen minutes and provides guidance on what parties who are experiencing technical difficulties with appearance by videoconference or teleconference are expected to do to avoid default. The proposed rule would also eliminate the current default rule regarding a failure of a party to be ready to proceed because such grounds do not constitute a failure to appear.

A proposed new subsection (c) of §159.213 requires a default to be supported by adequate proof that the notice of hearing was properly filed and served on the defaulting party. Subsection (c)(1) establishes a rebuttable presumption that proper notice was given to a defendant if the notice was served electronically to the defendant or defense counsel at the email address on file with the record of the case. The judge may also consider evidence that the notice was served through other methods. Subsection (c)(2) establishes a rebuttable presumption that proper notice was given to DPS if information regarding the date, time, and location or method of appearance was electronically transmitted to the Department by the SOAH Chief Clerk's Office or issued by the judge to the DPS attorney of record at the email address(es) reflected in eFile Texas. The judge is also allowed to consider evidence that the notice of the scheduled hearing was published on SOAH's website or available to DPS through re:SearchTX.

A proposed new subsection (d) of §159.213 provides that if the defendant fails to appear, the defendant's right to a hearing is waived and the judge will issue a decision authorizing suspension of the defendant's driver's license.

A proposed new subsection (e) of §159.213 provides that if DPS fails to appear, the judge will issue a default dismissal without suspension or disqualification of the defendant's driver's license. A case dismissed under this subsection may not be refiled.

The current subsection (b) of §159.213 relating to motions to vacate a default is renumbered as subsection (g). The new subsection (g) is then amended throughout to make the provision neutrally applicable to both DPS and the defendant. The time for when a motion to vacate must be filed is clarified to require filing of the motion within 10 days of the judge's issuance of a default decision and order, not within 10 days of the hearing at which they failed to appear. The requirements for a motion to vacate are amended to include a requirement for the defaulting party to state the grounds for their failure to appear. An option for a hearing on the motion to occur by videoconference is added to the existing option for a teleconference hearing on the motion.

Subchapter F

Subchapter F relates to the disposition of a case.

Section 159.253 relates to the decision of the judge. Subsection (b) of §159.253 pertains to the finality of the SOAH judge's decision and is amended to clarify that the judge's order is not subject to a request to modify a decision, except for a corrected decision under the proposed new §159.254.

A new subsection (c) of §159.253 is proposed to clarify that the SOAH judge's decision merely adjudicates the issue of whether the DPS is authorized to suspend a license and the length of the suspension authorized; it does not determine the specific effective dates for any suspension of a defendant's license. This clarification is intended as an official rejection of any former practice at SOAH in which judges may have engaged in the practice of backdating an ALR decision in order to probate an ALR suspension or reduce the amount of time a defendant's license is suspended by DPS.

A new subsection (d) of §159.253 is proposed to clarify that the outcome of an ALR case is determined by the SOAH judge's final written decision, and not by any automated case data that is exchanged with DPS. SOAH's Administrative Case Tracking System (ACTS) maintains a two-way data exchange with DPS in which certain data elements relating to ALR cases are exchanged between SOAH and DPS to help both agencies manage the large volume of cases. When an ALR decision or order of dismissal is issued by a SOAH judge, case data relating to the disposition type and manner is relayed from the ACTS system back to DPS's automated systems. This data exchange is in addition to SOAH's formal issuance and delivery of the judge's written decision to DPS through eFile Texas. Although the automated case data provided to DPS is intended to accurately reflect the outcomes of cases, it is not officially a part of the administrative record. Occasionally, the data reported to DPS for a particular case outcome may conflict with the judge's actual written decision due to a data entry or coding error. SOAH is aware that DPS staff have occasionally misinformed defendants that DPS is without authority to correct a defendant's driver's record when a data reporting errors occur. The proposed §159.253(d) resolves this issue by clarifying that the judge's final written decision or order always controls as to the proper disposition of the case over any conflicting data reported to the DPS Enforcement and Compliance Service division.

A new subsection (e) of §159.253 is proposed to clarify that DPS is solely responsible for ensuring that the Department administers the defendant's driving record and any suspension in a manner that is consistent with the judge's final disposition of the case. The intent of this provision is to correct a mistaken belief by some as to the extent of SOAH's authority. SOAH does not have legal authority to take post-judgement enforcement action against DPS with respect to the administration of an ALR decision. This subsection supplements the new subsections (c) and (d) by further clarifying the separation of responsibility between SOAH and DPS as to which agency is responsible for administration of a defendant's driver's license record and any suspension once the SOAH judge has issued a final decision or order.

A new §159.254 is proposed relating to the correction of a final decision. It sometimes happens that when a written ALR decision is rendered, essential information that should be included in the record is inadvertently omitted, entered incorrectly, or entered into the wrong template as the result of a clerical error. Although SOAH does not have the same plenary powers as the judiciary, SOAH does have some limited ability to correct post-judgement clerical errors and omissions as necessary to ensure that the judge's intent is properly reflected in the administrative record at SOAH and that the due process rights of the parties are not inadvertently prejudiced by clerical errors in entry of judgement. §159.254 would create a formal and consistent process for the correction of such errors. Subsection (a) of §159.254 creates an exception to Rule §159.253 to allow DPS, defendants, and SOAH's own administrative law judges to seek correction of an ALR decision after it has been issued for the limited purpose of correcting a clerical error or applying the correct statutory period of suspension. Subsection (b) requires that any motion for a corrected decision must be filed as soon as possible after the error is discovered, but not later than 10 business days after the issuance of the original decision, and must specify the error to be corrected. Subsection (c) provides that a motion for a corrected decision does not extend the deadline for appeal or stay other actions. Subsection (d) establishes the ground rules for such corrections and states that a corrected decision may only be issued if the error is apparent on the face of the record and correction is required to accurately reflect the judge's intent. A corrected decision cannot be based on a request for reconsideration or new evidence and may not be used to correct judicial error in the judgment. Subsection (e) provides that the judge is not required to act on a request for correction of a final decision, and any correction of a decision must be issued by not later than the 29th day after issuance of the original decision that is in error.

Section 159.255 relates to the appeal of a judge's decision, and SOAH proposes amendments to this section for consistency with current practice.

Subsection (a) of §159.255 is amended to clarify that it is the responsibility of the person appealing an ALR decision to provide the administrative record to the appropriate court for appeal. Subsection (a) also cross-references a new subsection (d).

Subsection (a)(1) of §159.255 is amended to eliminate the outdated requirement for the record on appeal to include the "first" file-marked or stamped copy of motions and other pleadings. This requirement pre-dates the adoption of electronic case records and relates back to a time when only the original filed-stamped paper copy of a document was considered to be the official record. Today, the administrative record consists of electronic case records that have been e-filed at SOAH. When documents are e-filed with the SOAH Chief Clerk's Office, SOAH's acceptance of a filing is logged through eFile Texas and recorded on the face of the document by SOAH's electronic file stamp. This file-stamped electronic version of a record may be relied upon in the same manner as an original or certified copy. Thus, the requirement for any document to be the "first" copy is unnecessary.

Subsection (b) of §159.255 is amended to address the statutory requirement of section 524.041(c) of the Transportation Code requiring a person who appeals an ALR decision to provide a copy of the petition of appeal to SOAH. This section requires filing a copy of a file-stamped or certified copy of the petition of appeal into the record of the case at SOAH.

The former subsection (b) of §159.255 is renumbered as subsection (c) and is amended to clarify the current process for appeal transcript requests. Appeal transcript requests must be filed into the record of the case, together with a file-stamped or certified copy of the petition of appeal. This subsection is also amended to clarify that SOAH is not obligated to prepare a written transcript for cases that are not appealed, nor is SOAH required to furnish a free transcript to a party who is unable to pay the costs of a transcript. These changes are intended to ensure that SOAH's appeal transcript process is reserved for only its intended purpose of preparing written transcripts for appeal, and only upon the payment of costs. These changes are consistent with section 524.044 of the Transportation Code (relating to transcripts for ALR appeals) and Texas Attorney General Opinion GA-0524 (2007) (stating that SOAH is not required to furnish a free transcript to indigent defendants for ALR appeals).

Section 159.255(b) is also amended to remove reference to the requirement for SOAH to provide the record to the reviewing court. As provided by subsection (a) of this section, the longstanding and current practice in ALR cases is for SOAH to provide the certified record to the parties, and then the parties provide the record directly to the court. Information addressing SOAH's retention of the case file and audio recording is relocated to a new subsection (e) relating to records retention.

A new subsection (d) of §159.255 is added to recognize that some local jurisdictions throughout the state have adopted a practice of allowing ALR cases to be appealed for the sole purpose of obtaining a stay of suspension to allow additional time for a person to seek an essential need or occupational driver's license. The parties will need to confirm the local rules of the court for their particular jurisdiction, but where this is allowed, courts will sometimes waive the transcript requirement.

A new subsection (e) of §159.255 is added to address SOAH's retention of appealed case records for a period of three years. This subsection relocates language regarding records retention from the former subsection (c).

Subsection (c) of §159.255 is renumbered as subsection (f) and describes the procedure for when a reviewing court remands an ALR case to SOAH for further proceedings. This subsection is amended to remove the requirement for the parties to provide an estimate of the time required to present additional evidence if a hearing is requested. The reviewing court's instructions to SOAH regarding any hearing on remand should be set forth in the remand order, and therefore it is not necessary for the appellant to request a hearing on remand or provide a time estimate.

Subsection (d) of §159.255 relating to the effect of a remand on the suspension of a driver's license is renumbered as subsection (g).

A new §159.257 is proposed to address the effect of the disposition of criminal proceedings and any orders of expunction on the disposition of ALR cases and records at SOAH. SOAH has observed that defendants, defense counsel, and judicial officials often misunderstand how a dismissal of criminal charges, or a court order of expunction based on a dismissal of charges, affects an ALR case at SOAH. This section is intended to offer clarification and citation to the relevant laws that determine these issues. As a general matter, only the acquittal of charges based on a finding of not guilty can impact an ALR proceeding.

Subsection (a) of the proposed §159.257 states that the disposition or expunction of criminal charges relating to the same arrest that forms the basis of an ALR case does not affect SOAH's adjudication of an ALR proceeding, except as provided by §524.015 or §724.048 of the Transportation Code. These provisions of the Transportation Code state that the disposition of a criminal charge does not bar any matter in issue in an ALR case unless the person was acquitted of certain relevant criminal charges.

Subsection (b) of the proposed §159.257 provides that the records of ALR proceedings at SOAH are only subject to expunction if the expunction order complies with article 55.06 of the Code of Criminal Procedure. Article 55.06 relates specifically to ALR case records and cross-references §524.015 and §724.048 of the Transportation Code. Construed together as a whole, these laws provide that ALR records can only be expunged based on the acquittal of criminal charges relating to the same arrest at issue in the ALR proceeding.

Subsection (c) of the proposed §159.257 summarizes and restates the effect of both subsections (a) and (b) to state that only an order of expunction based on the acquittal of criminal charges can affect the disposition of an ALR case or require the expunction of ALR records; an order of expunction based on the dismissal of criminal charges has no effect.

Fiscal Impact. Kristofer S. Monson, Chief Administrative Law Judge for SOAH, has determined for the first five-year period the proposed rule amendments are in effect, there are no additional costs to state or local government. In particular, the rule changes only impact SOAH and the Texas Department of Public Safety, and most of the procedural and technology related changes proposed by the rules have already been implemented.

Local Employment Impact. The proposal has no effect on local economy; therefore, no local employment impact statement is required under Texas Government Code, §2001.022.

Small Business, Microbusiness, and Rural Community Impact: The proposal has no direct adverse economic impact for small businesses, microbusinesses, or rural communities; therefore, no regulatory flexibility analysis, specified in Texas Government Code, §2006.002, is required.

Cost Increase to Regulated Persons: The proposal does not impose a cost on regulated persons, another state agency, a special district, or a local government and, therefore, is not subject to Texas Government Code, §2001.0045. More specifically, the technology-related changes proposed by the rules that require the use of videoconferencing, electronic filing and service, and electronic records access have already been implemented. SOAH provides free access to attend videoconference hearings using a videoconferencing platform hosted by SOAH. SOAH has adopted and implemented eFile Texas, which is a statewide electronic filing and service provider that is available to DPS and ALR case participants at no cost. SOAH has also adopted re:SearchTX, which is an online court records repository for access to ALR case records at SOAH and there are no costs to create an account or obtain access to SOAH records. To the extent that any individual participant may incur technology-related costs associated with SOAH's implementation of electronic filing and videoconferencing for ALR hearings, these costs are anticipated to be off-set by increased access to participation in ALR proceedings, greater efficiencies associated with electronic documents, and cost-savings associated with reduced costs for copying and mailing documents, and reduced travel expenses associated with hearing attendance.

Takings Impact Assessment. Chief Judge Monson has determined that the proposed rule amendments will not affect private real property interests, therefore SOAH is not required to prepare a takings impact assessment under Government Code §2007.043.

Public Benefit. Chief Judge Monson has determined for the first five-year period the proposed rule amendments are in effect, there will be a benefit to the general public, attorneys, and other parties appearing at SOAH because the proposed rule amendments will provide improved efficiency in the filing and service of documents relating to ALR cases at SOAH, increased access to the administrative hearings process, and greater fairness and efficiency in the conduct of ALR hearings.

Government Growth Impact Statement. Pursuant to Government Code §2001.0221, the agency provides the following Government Growth Impact Statement for the proposed rule amendments. For the first five years the proposed rule amendments will be in effect, the agency has determined the following: (1) The proposed rule amendments do not create or eliminate a government program; (2) Implementation of the proposed rule amendments does not require the creation of new employee positions or the elimination of existing employee positions; (3) Implementation of the proposed rule amendments does not require an increase or decrease in future legislative appropriations to the agency; (4) The proposed rule amendments do not require an increase or decrease in fees paid to the agency; (5) The proposed rule amendments do not create a new form of regulation; (6) The proposed rule amendments do not expand, limit, or repeal existing regulations; (7) The proposed rule amendments do not increase the number of individuals subject to the rule's applicability; and (8) The proposed rule amendments do not positively or adversely affect this state's economy.

Public Comments. Written comments on the proposed rules may be submitted to State Office of Administrative Hearings, ATTN: Office of General Counsel, P.O. Box 13025, Austin, Texas 78711-3025 or by email to: rulemaking@soah.texas.gov with the subject line "SOAH ALR Rule Comments." The deadline for receipt of comments is 5:00 p.m. on June 24, 2024. Public comments will be addressed in the publication of the final adopted rule. All requests for a public hearing on the proposed rules must be received by the State Office of Administrative Hearings no more than fifteen (15) days after the notice of proposed rules have been published in the Texas Register.

SUBCHAPTER A. GENERAL

1 TAC §§159.1, 159.3, 159.7

Statutory Authority. The rule amendments are proposed under: (i) Texas Government Code § 2003.050, which provides that the Chief Administrative Law Judge shall adopt rules that govern procedures that relate to hearings conducted by SOAH; (ii) Texas Transportation Code §524.002 and §724.003, which provide that SOAH shall adopt rules to administer those chapters; and (iii) Texas Government Code § 2003.055, which provides that the Chief Administrative Law Judge shall develop and implement the effective use of technological solutions to improve the agency's ability to perform its functions.

Cross Reference to Statute. The proposed rule amendments affect Chapters 2001 and 2003 of the Texas Government Code, article 55 of the Texas Code of Criminal Procedure, and Chapters 522, 524, and 724 of the Texas Transportation Code.

§159.1.Scope and Construction of this Chapter.

(a) This chapter applies to contested hearings before SOAH concerning administrative suspension, denial, or disqualification of drivers' licenses under the Administrative License Revocation (ALR) Program governed by Texas Transportation Code, Chapters 522, 524, and 724.

(b) These regulations shall be construed to ensure the fair and expeditious determination of every action.

(c) These rules shall supplement the procedures required by law. [, but to] To the extent that any provisions of these rules that are necessary to expedite the hearings process [they] conflict with Texas Government Code, Chapter 2001, the provisions of this chapter shall prevail.

(d) When procedural issues arising under Texas Transportation Code, Chapters 522, 524, and 724 cannot be resolved by reference to this chapter, the APA, and applicable case law, then the presiding judge will consider and apply SOAH's Rules of Procedure in Chapter 155 of this title, and/or the Texas Rules of Civil Procedure (TRCP) as interpreted and construed by Texas case law, and persuasive authority established in other forums.

(e) An ALR hearing under this chapter is a civil administrative proceeding that is separate and independent from any criminal court proceedings relating to the same arrest.

§159.3.Definitions.

In this chapter, the following terms have the meaning indicated:

(1) Adult--An individual twenty-one years of age or older.

(2) [(3)] Alcohol concentration--Defined in Texas Penal Code §49.01.

(3) [(4)] Alcohol-related or drug-related enforcement contact--Defined in Texas Transportation Code §524.001.

(4) [(2)] ALR proceeding [suspension]--A [An] civil administrative proceeding under Texas Transportation Code, Chapters 522, 524 and/or 724 and this chapter relating to a driver's license disqualification, suspension, or denial resulting from an arrest for an offense relating to the operation of a motor vehicle or watercraft while intoxicated or under the influence of alcohol or controlled substances. [under the ALR Program which is the subject of this chapter.]

(5) Certified breath test technical supervisor--A person who has been certified by DPS to maintain and direct the operation of a breath test instrument used to analyze breath specimens of persons suspected of driving while intoxicated.

(6) Contested case--A proceeding brought under Texas Transportation Code, Chapter 522, Subchapter I; Chapter 524, Subchapter D; or Chapter 724, Subchapter D.

(7) Defendant--One who holds a license as defined in Texas Transportation Code, Chapter 521, or an unlicensed driver, whose legal rights, duties, statutory entitlement, or privileges may be affected by the outcome of a contested case under this chapter.

(8) Defense counsel--An attorney who is authorized to participate in an ALR proceeding as a current, former, or prospective representative of a Defendant. Defense counsel does not include a non-attorney representative or an attorney who is not authorized to practice law in Texas and has not obtained permission to appear pursuant to §159.57(d) of this chapter.

(9) [(8)] Denial--The non-issuance of a license or permit, and loss of the privilege to obtain a license or permit.

(10) [(9)] DPS or the Department --The Texas Department of Public Safety.

(11) [(10)] Driver--A person who drives or is in actual physical control of a motor vehicle.

(12) Efile Texas or eFile Texas--An electronic filing service provider offered by the Office of Court Administration for use in electronically filing and serving documents in cases at SOAH and in judicial courts of record, available at http://www.efiletexas.gov. In these rules, the terms "eFile Texas," "electronic filing service provider," and "electronic filing manager" may be used interchangeably, although they may be assigned more specific meaning as appropriate in a given context.

(13) Electronic filing or filed electronically--The electronic transmission of documents filed in an ALR proceeding by uploading the documents to the case docket using eFile Texas or another electronic filing service provider certified by the Office of Court Administration. In these rules, the term "electronic filing" may also include the submission of digital audio and video evidence in the manner specified on SOAH's website, but does not include the submission of filings by email, facsimile transmission, or unapproved file sharing platforms.

(14) Electronic Filing Service Provider (EFSP) or electronic filing manager--An online web portal service offered by an independent third-party provider and certified by the Office of Court Administration for use in electronically filing documents at SOAH and judicial courts of record, and that acts as the intermediary between the filer and eFileTexas.

(15) Electronic service or served electronically--The electronic transmission and delivery of documents to a party or a party's authorized representative by means of an electronic filing service provider.

(16) Electronic signature or signed electronically--An electronic version of a person's signature that is the legal equivalent of the person's handwritten signature. Electronic signature formats include:

(A) an "/s/" and the person's name typed in the space where the signature would otherwise appear;

(B) an electronic graphical image or scanned image of the signature; or

(C) a "digital signature" based on accepted public key infrastructure technology that guarantees the signers identity and data integrity.

(17) Filed--The receipt and acceptance for filing by the SOAH Chief Clerk's office.

(18) [(11)] Final decision--The decision issued by a judge who hears the contested case or another judge who reviewed the record in its entirety and who is authorized under appropriate law to issue final decisions in an ALR case.

(19) [(12)] Intoxicated--Defined in Texas Penal Code §49.01(2).

(20) [(13)] Minor--An individual under twenty-one years of age.

(21) [(14)] Operate--To drive or be in actual physical control of a motor vehicle.

(22) [(15)] Peace officer--A person elected, employed, or appointed as a peace officer under Texas Criminal Procedure Code §2.12 or other law. A peace officer may also be referred to as an arresting officer.

(23) [(16)] Public place--Defined in Texas Penal Code §1.07, Chapter 1, and Texas Transportation Code §524.001, Chapter 524.

(24) Research Texas or re:SearchTX--An online repository of court case records in Texas, including records filed in ALR proceedings at SOAH, available at http://research.txcourts.gov.

(25) [(17)] Test--The taking of blood or breath specimens as set out in Texas Transportation Code, Chapters 522, 524, and 724.

(26) Videoconference--Technology that provides for a conference of individuals in different locations, connected by electronic means through audio and video signals transmitted over the Internet, where all participants have an opportunity to communicate and participate in the conference.

(27) [(18)] The following terms are defined in 1 Texas Administrative Code §155.5 (relating to Definitions): Administrative Law Judge or judge; APA; authorized representative; business day; confidential information; Chief Judge; discovery; evidence; exhibits; ex parte communication; party; person; personal identifying information; TRCP; and SOAH.

§159.7.Other SOAH Rules of Procedure.

Other SOAH rules of procedure found at Chapter [Chapters ] 155 of this title (relating to Rules of Procedure), Chapter 157 of this title (relating to Temporary Administrative Law Judges) and Chapter 161 of this title (relating to Requests for Records) may apply in contested cases under this chapter unless there are specific applicable procedures set out in this chapter. The rules that specifically apply include:

(1) Subchapter C, §§155.101, 155.103, and 155.105 of this title (relating to Filing Documents, Confidential Information, and Service of Documents on Parties);

(2) [(1)] Subchapter D, §§155.151 - 155.153, 155.155, 155.157 [§§155.151 - 155.157] of this title (relating to Assignment of Judges to Cases, Disqualification or Recusal of Judges, Powers and Duties, Orders, and Sanctioning Authority);

(3) [(2)] Subchapter E, §155.201 and §155.203 [§§155.201] of this title (relating to Representation of Parties and Withdrawal of Counsel);

(4) [(3)] Subchapter I, §155.417 of this title (relating to Stipulations);

(5) [(4)] Subchapter I, §155.425 of this title (relating to Procedure at Hearing);

(6) [(5)] Subchapter I, §155.431 of this title (relating to Conduct and Decorum);

(7) [(6)] Section 157.1 [§157.1] of this title (relating to Temporary Administrative Law Judges); and

(8) [(7)] Section 161.1 [§161.1] of this title (relating to Charges for Copies of Public Information).

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on May 7, 2024.

TRD-202402033

Shane Linkous

General Counsel

State Office of Administrative Hearings

Earliest possible date of adoption: June 23, 2024

For further information, please call: (512) 475-4993

1 TAC §§159.51, 159.53, 159.55, 159.57, 159.59, 159.61

Statutory Authority. The rule amendments are proposed under: (i) Texas Government Code § 2003.050, which provides that the Chief Administrative Law Judge shall adopt rules that govern procedures that relate to hearings conducted by SOAH; (ii) Texas Transportation Code §524.002 and §724.003, which provide that SOAH shall adopt rules to administer those chapters; and (iii) Texas Government Code § 2003.055, which provides that the Chief Administrative Law Judge shall develop and implement the effective use of technological solutions to improve the agency's ability to perform its functions.

Cross Reference to Statute. The proposed rule amendments affect Chapters 2001 and 2003 of the Texas Government Code, and Chapters 522, 524, and 724 of the Texas Transportation Code.

§159.51.Jurisdiction [Withdrawal of Counsel].

(a) Acquisition of jurisdiction. SOAH acquires jurisdiction over a case involving a particular hearing request on the date when sufficient information required by SOAH for the scheduling of an ALR proceeding is electronically transmitted by DPS to the SOAH Chief Clerk's Office. [An attorney may seek to withdraw from representing a defendant only upon written motion for good cause shown. If another attorney is to be substituted as attorney for the defendant, the motion shall state the substituted attorney's name, address, telephone number, and telecopier number and state that the attorney approves the substitution.]

(b) Effect of acquisition of jurisdiction by SOAH. Once SOAH acquires jurisdiction, SOAH shall promptly schedule the hearing in accordance with §159.201 of this title (relating to Scheduling and Notice of Hearing), and DPS and the defendant may initiate discovery or move for appropriate relief. [If the defendant has no substitute attorney, the withdrawing attorney must include the defendant's last known address and a statement indicating whether the defendant consents to the withdrawal. If defendant does not consent to the withdrawal, the attorney also must affirm that the defendant has been informed of the right to object to the motion.]

(c) Commencement of time periods. A period of time established by these rules shall not begin to run until the hearing is initially scheduled by SOAH. [If the motion to withdraw is granted, the withdrawing attorney shall immediately forward the notice of hearing, all additional information about settings and deadlines, and any discovery obtained for the case to a self-represented defendant or to the substitute attorney for a defendant who is represented.]

(d) Cessation of Jurisdiction. SOAH jurisdiction over a case involving a particular hearing request ends upon the date the SOAH judge issues a final decision or order of dismissal, and if applicable, the deadline for any post-judgement motions has passed. Thereafter, jurisdiction may only be extended by order of the judge to:

(1) reinstate a case as provided by §159.203(c) of this title (relating to Involuntary Dismissal);

(2) vacate a default as provided by §159.213(g) of this title (relating to Failure to Attend Hearing and Default); or

(3) correct a decision as provided by §159.254 of this title (relating to Correction of Final Decision).

(e) After the cessation of jurisdiction, SOAH has concluded its involvement in the matter and has no continuing jurisdiction, including that SOAH has no authority to enforce or correct the Department's administration of a suspension, revocation, or reinstatement of a driver's license.

§159.53.Filing Documents.

(a) All notices, pleadings, motions, exhibits, and other documents for ALR proceedings must be filed in the manner specified by this section and in compliance with 1 Texas Administrative Code §155.101 and §155.103 of this title (relating to Filing Documents and Service of Documents on Parties).

(b) Methods of Filing.

(1) Electronic Filing. Defense counsel and the Department shall electronically file all notices, pleadings, motions, exhibits, and other documents for an ALR proceeding at SOAH by use of eFile Texas or another electronic filing service provider certified by the Office of Court Administration. Parties not represented by an attorney are strongly encouraged to electronically file documents but may use alternative methods of filing described in paragraph (2) of this subsection.

(A) Party Information. As soon as practicable after the initial docketing of an ALR proceeding at SOAH, each party or attorney of record shall ensure that the electronic filing manager contains complete and accurate party contact information known to the parties at the time, including the entry and verification of the mailing address, phone number, and email address of each party.

(B) Designation of Lead Counsel. If the party will be represented by an attorney, the lead counsel who is primarily responsible for the representation shall ensure that the information entered into the electronic filing manager includes the designation of lead counsel and lead counsel's state bar identification number.

(C) Service Contact Information. Each party, or lead counsel if the party will be represented by an attorney, shall ensure that the electronic filing manager contains complete and accurate service contact information known to the parties at the time of filing, including the entry and verification of the email address of each party or attorney who is required to be served.

(i) The service contact information maintained in the electronic filing manager must be sufficient to allow SOAH and the parties to electronically serve documents through eFile Texas.

(ii) SOAH may rely on the service contact information on file in eFile Texas for electronic delivery of orders, decisions, and other case-related communications from SOAH. SOAH is not required to deliver copies of orders, decisions, or other case related communications to persons who are not identified as a party, lead counsel, or service contact for the case within eFile Texas.

(iii) Failure to enter and verify service contact information within eFile Texas may result in a failure to comply with legal requirements for service of process.

(D) Document Titles and Use of Proper Filing Codes. All documents submitted for electronic filing must be properly titled or described in the electronic filing manager in a manner that permits SOAH and the parties to reasonably ascertain its contents, including through use of the correct filing code for the type of document.

(2) Filing by Self-represented Parties. Defendants without an attorney are strongly encouraged, but not required, to file electronically in the manner described in paragraph (1) of this subsection. Self-represented parties may use approved alternative methods of email, facsimile transmission, mail, or hand-delivery in the manner specified on SOAH's website.

(3) Alternative Filing Methods. For good cause, a judge may permit a party to file documents in paper or another acceptable form in a particular case.

(c) Requirements for All Filers.

(1) Address of Record Required. The defendant, the Department, and lead counsel for each party shall provide and maintain a current mailing address and email address on file with SOAH during the pendency of the proceeding. SOAH and the parties may maintain the parties' address information on file as part of the electronic record in eFile Texas.

(2) Pleadings and Motions. All pleadings, motions, or applications to the judge for an order, whether in the form of a motion, plea, or other form of request, must be filed with the SOAH Chief Clerk's Office in writing and signed by the party, unless presented orally during a hearing.

(3) Separate Submissions Required. Different document types cannot be combined into a single submission for filing. A party may not combine motions requesting different types of relief or action into a single filing but must submit each motion separately. If the document submitted for filing is an exhibit, it must be properly identified as an exhibit and submitted separately from motions, pleadings, or other filings, unless the exhibit is attached as a necessary supporting document to a pleading.

(4) Confidential Filing Required. To avoid the public disclosure or redaction of confidential information or personal identifying information necessary for the resolution of an ALR proceeding, all documents submitted for filing shall be designated as "confidential" at the time of submission. Failure to correctly submit documents as "confidential" may result in the record being publicly-accessible through the re:SearchTX court records portal.

(5) Exhibit Submission.

(A) Prefiling Required. All exhibits shall be prefiled at least two days before the hearing to avoid unnecessary surprise or delay. The judge, in his or her discretion, may grant or deny the presentation and admission of exhibits that were not timely prefiled in accordance with this section.

(B) Organization of Exhibits. Exhibits should be numbered sequentially, and multipage documents shall be paginated or Bates stamped. If multiple exhibits are combined into a single document for submission, then the document must be bookmarked to allow the judge and parties to locate each exhibit within the record.

(C) DPS Notice of Hearing. The Department must file a copy of the notice of hearing and any amended or corrected notices of hearing.

(D) Audio and Video Evidence. Evidentiary exhibits in the form of audio or video recordings shall be filed electronically in the manner specified on SOAH's website. Audiovisual evidence may only be submitted in a common, non-proprietary file format (e.g., MP4, WMV, AVI, MPEG) that can be reviewed by the judge and presented at the hearing without the need for special equipment or software.

(E) Supplemental Exhibits. Any exhibits admitted at a hearing that were not prefiled as required by this section, shall be filed electronically by the party who offered the exhibit by no later than the next business day after the conclusion of the hearing. The parties may only supplement the record with exhibits that were offered and admitted as evidence, or for which an offer of proof was presented at the hearing.

§159.55.Service of Documents on Parties.

(a) Service Required. On the same date a document is filed at SOAH, a copy shall also be sent to each party or the party's lead counsel if the party is represented by an attorney. Documents shall be served in the manner specified by this section and in compliance with 1 Texas Administrative Code §155.105 of this title (relating to Service of Documents on Parties).

(b) Service Contact Information. It is the responsibility of DPS and defense counsel, if the defendant is represented by counsel, to ensure that complete and accurate service contact information is entered in the electronic filing manager for each party or attorney who is required to be served. SOAH or the Department may assist an unrepresented defendant with entering the defendant's service contact information into eFile Texas.

(c) Method of Service.

(1) Electronic Service. A document filed electronically at SOAH must be served electronically through the use of eFile Texas or another electronic filing service provider certified by the Office of Court Administration if the email address of the party or attorney to be served is on file with the record of the case. If the email address of the party to be served is not on file with the electronic filing manager, the document may be served on that party or attorney under paragraph (2) of this subsection.

(2) Alternative Service. If the email address of the party to be served is not on file with the record of the case, then the document may be served in person, by mail, by commercial delivery service, by fax, or by such other manner as directed by the judge. Self-represented parties may use approved alternative methods of email, facsimile transmission, mail, or hand-delivery to serve documents to the Department.

(3) Service of Audio and Video Exhibits. The requirement to serve audio and video exhibits to the other party may be satisfied if the audio or video recordings are filed electronically at SOAH in the manner specified under §159.53 of this title (relating to Filing Documents), and an electronic copy or online access to such exhibits is provided to the party or attorney to be served.

(d) Certificate of Service. A person filing a document shall include a certificate of service that certifies compliance with this section and 1 Texas Administrative Code §155.105. A certificate of service shall be sufficient if it substantially complies with the following example: "Certificate of Service: I certify that on {date}, a true and correct copy of this {name of document} has been sent to {name of opposing party or authorized representative for the opposing party} by {specify method of delivery, e.g., electronic filing, regular mail, hand-delivery, fax, certified mail.} {Signature}"

(e) Proof of Service. Proof of service may be established by evidence that the document required to be served was electronically served to the party, or if party has legal representation, to party's counsel, at email address of record on file in the electronic filing manager. Alternatively, proof of service may be established by evidence that the document was served in accordance with paragraph (c)(2) of this section to the last known address, as reflected on defendant's notice of suspension, request for hearing, driving record or similar documentation.

(f) Delivery of SOAH Orders. All orders issued by the SOAH judge are considered received by the party upon SOAH's electronic transmission of the order to eFile Texas, if the recipient's email address is on file as part of the electronic record in eFile Texas.

§159.57.Representation of the Parties.

(a) Representation. A defendant may represent himself or herself, or may employ an attorney representative who is authorized to act as defense counsel. Defendants who are not represented by an attorney may obtain information about representing themselves in ALR proceedings on SOAH's public website at www.soah.texas.gov. SOAH cannot appoint an attorney or provide legal advice for a self-represented litigant.

(b) Appearance of Counsel. Defense counsel who has not otherwise entered an appearance as a matter of record in the proceeding at SOAH shall electronically file a notice of representation that contains the attorney's mailing address, email address, and telephone number. At the time of filing, defense counsel shall enter and verify their service contact information within eFile Texas, including the designation of lead counsel.

(c) Designation of Lead Counsel.

(1) Each party represented by counsel shall designate the lead counsel who is primarily responsible for the representation.

(2) When more than one attorney makes an appearance on behalf of a party, the attorney whose signature first appears on the initial pleading for a party shall be designated as lead counsel for that party unless another attorney is specifically designated in writing and/or within eFile Texas.

(3) If necessary to promote efficiency due to the large number of ALR cases, DPS may designate the lead attorney for the DPS region to which the case is assigned as lead counsel within eFile Texas, even if another DPS attorney appears on behalf of the Department at the hearing.

(4) All delivery of service of process and case-related communications shall be sent to the lead counsel as designated within eFile Texas.

§159.59.Withdrawal and Substitution of Counsel.

(a) Defense counsel may withdraw from representing a party only if a written motion showing good cause for withdrawal is filed by the withdrawing attorney, the substituting attorney, or the defendant.

(1) If another attorney is to be substituted as defense counsel for the defendant, the motion shall state: the substituted attorney's name, mailing address, telephone number, and email address; that the substituting attorney has been notified of all pending settings and deadlines; and that the substituting attorney approves the substitution.

(2) If the defendant has no substitute attorney, the motion shall state: the defendant's last known mailing address, telephone number, and email address; that the defendant has been notified of all pending settings and deadlines; and whether the defendant consents to the withdrawal. If the defendant does not consent to the withdrawal, the attorney also must affirm that the defendant has been served with a copy of the motion and informed of the right to object to the withdrawal.

(b) A motion to withdraw must be served on all parties and must include a certificate of conference.

(c) An attorney will remain a defendant's attorney of record until a filed motion to withdraw has been granted by the judge.

(d) If the motion to withdraw is granted, the withdrawing attorney shall immediately forward the notice of hearing, all additional information about settings and deadlines, and any discovery obtained for the case to a self-represented defendant or, if the defendant is represented by counsel, to the substitute attorney.

(e) To ensure the delivery of service of process and future case-related communications upon the withdrawal or substitution of counsel, defense counsel shall verify and update the contact information in the electronic filing manager as follows:

(1) If the defendant has no substitute attorney, the withdrawing attorney shall verify and update the party contact information and service contact information for the defendant within eFile Texas.

(2) If the defendant will be represented by a substitute attorney, then the substitute attorney shall file a notice of appearance, and shall verify and update the service contact information and lead counsel designation for the record of the case within eFile Texas.

(f) The Department may substitute one attorney for another by entering an appearance at the hearing or by providing notice to the defendant, or defense counsel if defendant is represented by an attorney, without necessity for a motion or order. Upon such substitution, the Department shall verify and update the service contact information and designation of lead counsel for the record of the case within eFile Texas to ensure the delivery of service of process and future case-related communications to the Department.

§159.61.Electronic Case Records Access.

(a) Electronic Document Repository. The case records for ALR proceedings at SOAH are available online through re:SearchTX, the electronic court records system operated by the Office of Court Administration. This system serves as an official repository for SOAH case records.

(b) Accuracy and Completeness of Records. The electronic records available through re:SearchTX are automatically updated with the filing or issuance of any new documents in the ALR proceeding through eFile Texas. Case records available through re:SearchTX may be relied upon in the same manner as an original or certified copy. The repository includes file stamped copies of all current case records, but does not necessarily include:

(1) the electronic recording of the hearing;

(2) evidentiary exhibits in the form of audio or video recordings; and

(3) the written transcript of the hearing, if any.

(c) Access to Records. Users of re:SearchTX must establish an eFile Texas account or a re:SearchTX account. Access to ALR case records is determined by the security role assigned to the individual within eFile Texas for the particular case. To access ALR case records at SOAH through re:SearchTX, users must be properly designated within the eFile Texas system as one of the following:

(1) a defendant who has used eFile Texas to file at least one document in the case and is listed as a party to the case;

(2) lead counsel for the case, with a Texas state bar number that is electronically linked with the case in eFile Texas; or

(3) a member of lead counsel's eFile Texas firm profile, where lead counsel's Texas state bar number is electronically linked with the case in eFile Texas.

(d) Attorney use of re:SearchTX. Attorneys shall establish access to re:SearchTX, and are expected to obtain and maintain a sufficient level of technical competency to monitor case activity and obtain their own case records through the use of eFileTexas and re:SearchTX for the ALR cases in which they are authorized to appear.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on May 7, 2024.

TRD-202402034

Shane Linkous

General Counsel

State Office of Administrative Hearings

Earliest possible date of adoption: June 23, 2024

For further information, please call: (512) 475-4993

1 TAC §§159.101, 159.103, 159.104

Statutory Authority. The rule amendments are proposed under: (i) Texas Government Code § 2003.050, which provides that the Chief Administrative Law Judge shall adopt rules that govern procedures that relate to hearings conducted by SOAH; (ii) Texas Transportation Code § 524.002 and § 724.003, which provide that SOAH shall adopt rules to administer those chapters; and (iii) Texas Government Code § 2003.055, which provides that the Chief Administrative Law Judge shall develop and implement the effective use of technological solutions to improve the agency's ability to perform its functions.

Cross Reference to Statute. The proposed rule amendments affect Chapters 2001 and 2003 of the Texas Government Code, and Chapters 522, 524, and 724 of the Texas Transportation Code.

§159.101.Subpoenas Generally.

(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) A subpoena must be issued on the form provided at www.soah.texas.gov.

(3) The party that causes a subpoena to be issued must take reasonable steps to avoid imposing undue burden or expense on the person served.

(4) A party or attorney that violates the requirements of this subchapter will be subject to sanctions as determined by the judge, including, but not limited to, the loss of authority to issue subpoenas for ALR hearings.

(5) If a party that requests or issues a subpoena fails to timely appear at the hearing, any subpoenaed witnesses will be released from the subpoena and the subpoena will have no continuing effect.

(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 appearance [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 appearance [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.

(1) Not 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:

(A) a party intends to call more than two peace officers to testify as witnesses;

(B) a party seeks to compel the appearance [presence] of witnesses who are not peace officers;

(C) a party seeks to compel the appearance [presence] of the breath test operator or technical supervisor and, by affidavit based on personal knowledge, has established a genuine issue concerning the validity of the breath test that requires the appearance of the witness to resolve; or

(D) a defendant, who is not represented by an attorney, seeks to compel the appearance [presence] of witnesses.

(2) A request for subpoena that is not granted prior to the hearing may be re-urged at the hearing. If the judge grants the request for a subpoena at the hearing, the hearing shall reconvene at a later date for the appearance of the witness.

(d) 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.

§159.103.Issuance and Service of Subpoenas.

(a) A party that issues or is granted a subpoena duces tecum shall be responsible for having the subpoena served, and may be required to advance the reasonable costs of reproducing any documents or tangible things requested. [The subpoena may be served at any place within the State of Texas by any sheriff or constable of the State of Texas, or any person who is not a party to the case and is 18 years of age or older. A subpoena must be served by delivering a copy to the witness. If the witness is a party and is represented by an attorney of record in the proceeding, the subpoena may be served on the witness's attorney. A subpoena may also be served by accepted alternative methods established by a peace officer's law enforcement agency.]

(b) A subpoena must be served at least five days before the hearing, and must include a copy of the notice of hearing or other information that is sufficient to notify the witness of how to appear, including instructions and information for joining a videoconference or telephone conference call if applicable.

(c) Method of Service. A subpoena must be served by delivering a copy to the witness. The subpoena may be served at any place within the State of Texas by any sheriff or constable of the State of Texas, or any person who is not a party to the case and is 18 years of age or older.

(1) If the witness is a party and is represented by an attorney of record in the proceeding, the subpoena may be served on the witness's attorney.

(2) If the witness is a peace officer, then the subpoena shall be served by accepted methods established by a peace officer's law enforcement agency. If the peace officer's law enforcement agency does not have an accepted method for receipt of service of subpoenas, then the subpoena may be served by delivering a copy to the witness.

[(c) After a subpoena is served upon a witness, the return of service of the subpoena must be filed at SOAH at least three days prior to the hearing. Upon the subpoenaed witness's appearance at the hearing, the party that issued the subpoena shall tender a witness fee check or money order in the amount of $10 to the witness. In addition, if the witness traveled more than 25 miles round-trip to the hearing from the witness's office or residence, mileage reimbursement must also be tendered at the same time. The amount of mileage reimbursement will be that listed in the state mileage guide at https://fmx.cpa.state.tx.us/fm/travel/travelrates.php.]

(d) After a subpoena is served upon a witness, the subpoena and the return of service of the subpoena must be filed at SOAH at least three days prior to the hearing. [If the hearing is conducted telephonically, the party that issued the subpoena shall mail the witness fee check or money order to the witness within one day of the conclusion of the hearing unless the witness fails to appear at the hearing. Also within one day of the conclusion of the hearing, the party shall forward to SOAH a certification that the witness fee or money order was mailed to the witness. A copy of the certification must be sent to the opposing party at the time it is filed at SOAH.]

(e) A subpoenaed witness whose assigned work location or residence is more than 150 miles from the designated hearing location is entitled to appear by telephone or videoconference. [If a party that served a subpoena on a witness fails to appear at a hearing, that party shall mail the witness fee check or money order to the witness within one day from receipt of a default decision or any other order issued by the judge ordering payment of the fee and mileage reimbursement. Also within one day from receipt of the judge's order, the party shall forward to SOAH a certification that the witness fee or money order was mailed to the witness. A copy of the certification must be sent to the opposing party at the time it is filed at SOAH.]

(f) A party seeking the admission of subpoenaed documents or audiovisual evidence at the hearing must prefile the exhibits in advance of the hearing in the manner specified by §159.53 of this chapter. [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 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 from a SOAH judge must serve the opposing party with a copy of the request at the time it is filed with SOAH.

(3) When a subpoena has been served, and not less than three days prior to the hearing, a party that has served a subpoena must provide the opposing party with a copy of the return of service.

(4) If a party fails to serve a copy of a subpoena or a subpoena return on the opposing party, the subpoena may be rendered unenforceable by the judge.

(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 that requested the continuance shall promptly notify any subpoenaed witnesses of the new hearing date and serve a copy of the notice on the opposing party.

§159.104.Witness Fees.

(a) Witness Fees. Upon the subpoenaed witness's appearance at the hearing, the party that issued the subpoena shall tender a witness fee check or money order in the amount of $10 to the witness, unless the witness waives the fee.

(b) Travel Reimbursement. If the witness traveled more than 25 miles round-trip to the hearing from the witness's office or residence, mileage reimbursement must also be tendered at the same time. The amount of mileage reimbursement will be determined in accordance with the travel rates established by the Comptroller of Public Accounts at https://fmx.cpa.state.tx.us/fm/travel/travelrates.

(c) If the witness is a peace officer, then any amounts for the witness fee and/or travel reimbursement shall be sent to the peace officer's attention at the peace officer's employing law enforcement agency.

(d) If the hearing is conducted by videoconference or telephone conference call, then the party who issued the subpoena shall mail the witness fee check or money order to the witness within one business day of the conclusion of the hearing unless the witness fails to appear at the hearing. Also within one business day of the conclusion of the hearing, the party shall file with SOAH a certification that the witness fee or money order was mailed to the witness. A copy of the certification must be sent to the opposing party at the time it is filed at SOAH.

(e) If a party who served a subpoena on a witness fails to appear at a hearing, that party shall mail the witness fee check or money order to the witness within one day from receipt of a default decision or any other order issued by the judge ordering payment of the fee and mileage reimbursement. Also within one day from receipt of the judge's order, the party shall file with SOAH a certification that the witness fee or money order was mailed to the witness. A copy of the certification must be sent to the opposing party at the time it is filed at SOAH.

(f) Procedures relating to witness fees and mileage reimbursement if a subpoena request is denied or a subpoena is quashed are governed by §159.105 of this chapter.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on May 7, 2024.

TRD-202402035

Shane Linkous

General Counsel

State Office of Administrative Hearings

Earliest possible date of adoption: June 23, 2024

For further information, please call: (512) 475-4993

1 TAC §159.151

Statutory Authority. The rule amendments are proposed under: (i) Texas Government Code § 2003.050, which provides that the Chief Administrative Law Judge shall adopt rules that govern procedures that relate to hearings conducted by SOAH; (ii) Texas Transportation Code §524.002 and §724.003, which provide that SOAH shall adopt rules to administer those chapters; and (iii) Texas Government Code § 2003.055, which provides that the Chief Administrative Law Judge shall develop and implement the effective use of technological solutions to improve the agency's ability to perform its functions.

Cross Reference to Statute. The proposed rule amendments affect Chapters 2001 and 2003 of the Texas Government Code, and Chapters 522, 524, and 724 of the Texas Transportation Code.

§159.151.Prehearing Discovery.

(a) A request for discovery may not be filed before SOAH acquires jurisdiction over a case involving a particular hearing request and the hearing is initially scheduled by SOAH [the request for hearing has been received by the Department].

(b) No party shall file copies of discovery requests with SOAH.

(c) Depositions, interrogatories, and requests for admission shall not be permitted in ALR proceedings, and the discovery rules of the Texas Rules of Civil Procedure requiring initial disclosures without awaiting a discovery request do not apply to an ALR proceeding.

(d) Both parties have the right to review, inspect, and obtain copies of any non-privileged documents or records in the other party's possession.

(e) A request for discovery must be on a separate document from other pleadings and notices and clearly labeled as a request for discovery.

(f) A defendant's request for discovery from DPS's ALR Division shall be served to the Department or the DPS attorney of record at the email address(es) reflected in eFile Texas [in the manner specified in 37 Texas Administrative Code §17.16 (relating to Service on the Department of Certain Items Required to be Served on, Mailed to, or Filed with the Department)]. DPS's request shall be served on Defendant at the address of record.

(g) Except as provided in subsection (j) of this section, responses to discovery shall be sent to the requesting parties within five days after receipt of the request.

(h) If a party does not have any or all of the documents in its actual possession, it shall respond within five days of the request, stating that it does not have the documents in its actual possession. A party must supplement all its discovery responses within five days from the time the party receives the discoverable documents.

(i) If a document sought through discovery is received by the requesting party fewer than ten days before the scheduled hearing, the judge may grant a continuance on the request of either party. [The judge may grant only one continuance based on recently obtained discovery.]

(j) A defendant may request inspection, maintenance, and/or repair records for the instrument used to test the defendant's breath specimen for the period covering 30 days prior to the test date and 30 days following the test date. If the records are not in the actual possession of DPS, then DPS shall inform the defendant of the proper person or other third party entity from whom the defendant can obtain discovery, if known. If the records are in the actual possession of DPS, then DPS shall supply the records to the defendant within ten days of receipt of the request. If DPS fails to provide properly requested records after the defendant has paid reasonable copying charges for them, evidence of the breath specimen shall not be admitted into evidence.

(k) A party who [that] seeks relevant, probative records from a third party may request issuance of a subpoena duces tecum pursuant to Subchapter C (relating to Witnesses and Subpoenas) to have the evidence produced for [at] the hearing. A person subpoenaed to produce records need not appear at the hearing unless the person is also commanded to attend and give testimony. If a person subpoenaed under this section does not appear or otherwise respond to the subpoena, the judge may grant a continuance to allow for enforcement of the subpoena.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on May 7, 2024.

TRD-202402036

Shane Linkous

General Counsel

State Office of Administrative Hearings

Earliest possible date of adoption: June 23, 2024

For further information, please call: (512) 475-4993

1 TAC §§159.201, 159.203, 159.207, 159.209 - 159.211, 159.213

Statutory Authority. The rule amendments are proposed under: (i) Texas Government Code § 2003.050, which provides that the Chief Administrative Law Judge shall adopt rules that govern procedures that relate to hearings conducted by SOAH; and (ii) Texas Transportation Code § 524.002 and § 724.003, which provide that SOAH shall adopt rules to administer those chapters.

Cross Reference to Statute. The proposed rule amendments affect Chapters 2001 and 2003 of the Texas Government Code, and Chapters 522, 524, and 724 of the Texas Transportation Code.

§159.201.Scheduling and Notice of Hearing.

(a) On receipt of a timely request for hearing, DPS shall promptly refer the case to SOAH for [schedule] a hearing to be conducted by a SOAH judge. After SOAH acquires jurisdiction over the matter in accordance with §159.51 of this title (relating to Jurisdiction), then SOAH has primary responsibility for the scheduling of a hearing.

(b) SOAH shall schedule hearings to be conducted at the earliest possible date, taking into consideration the availability and feasibility of videoconference technology as a means to promote the prompt, fair, and cost-effective resolution of ALR proceedings. To the extent possible, cases shall be scheduled by geographic region based on the defendant's county of arrest. [The location of the hearing will be set in accordance with the requirements of Texas Transportation Code §524.034 and §724.041. SOAH or DPS may change the hearing site upon agreement of all parties.]

(c) Once [DPS issues] the notice of hearing scheduling the hearing is issued [by telephone or videoconference], the hearing may be removed from that docket only upon timely request pursuant to §159.207 of this title (relating to Continuances), by order of the judge, or by agreement of the parties and with the ALJ's consent.

(d) It is a rebuttable presumption that [DPS mailed] the notice of the hearing was served to the defendant on the same date as the date listed in the notice.

(e) SOAH will provide timely access to ALR scheduling information on SOAH's website at www.soah.texas.gov.

§159.203.Waiver or Dismissal of Hearing.

(a) Waiver of Request for Hearing. The defendant may waive the request for hearing at any time before the administrative order is final. If the defendant requests a waiver after the notice of hearing is issued, the judge will enter an order accepting the waiver.

(b) Rescission of Notice of Suspension. If, after issuing a notice of hearing, DPS rescinds a notice of suspension, it shall immediately inform SOAH and the defendant of the rescission by the filing of a notice of rescission. A judge shall issue an order [may, on his or her own motion,] dismissing [dismiss] the case from SOAH's [its] docket once the notice of suspension has been rescinded.

(c) Involuntary Dismissal. A judge may dismiss a case on his or her own motion if the record shows no activity by the filing of pleadings or otherwise has occurred for a period of 120 days, or the case has not been brought to hearing with due diligence after multiple continuances to allow the parties to prepare for hearing.

(1) Notice of the judge's intention to dismiss must be sent to the parties at least 15 days prior to the effective date of dismissal. The judge may, but is not required to, conduct a hearing on the dismissal. The order of dismissal shall:

(A) state the reason for dismissal;

(B) inform the parties of an opportunity to seek reinstatement of the case; and

(C) inform the parties that the case is dismissed unless:

(i) a party files a motion to reinstate the case on the docket not later than 15 days after the issuance of the order; and

(ii) the motion to reinstate specifies the basis for the motion and addresses the grounds for dismissal stated in the judge's order.

(2) The judge may grant a motion to reinstate the case if the moving party shows valid and compelling reasons for the delay or inaction, or the judge finds that extraordinary circumstances exist that require reinstatement of the case.

(3) In the event a timely motion for reinstatement is not decided by written order of the judge within 30 days after the dismissal order is signed, the motion shall be deemed overruled by operation of law.

(4) Dismissal under this section removes the case from the SOAH docket and rescinds the notice of suspension without a decision on the merits.

§159.207.Continuances.

(a) A request for continuance will be considered in accordance with the provisions of Texas Transportation Code § 524.032(b) [§524.032(b)] and (c) (relating to rescheduling a hearing upon a defendant's request), § 524.039 [§524.039] (relating to appearance of technicians), and Texas Transportation Code § 724.041(g) [§724.041(g) ]. [DPS shall immediately notify SOAH of a continuance request under Texas Transportation Code §524.032(b).]

(b) A judge may grant a continuance if the motion is supported by good cause, consent of the parties, or operation of law [a subpoenaed witness is unavailable for the hearing].

(c) With the exception of a hearing that is rescheduled in accordance with Texas Transportation Code § 524.032(b), the [The] granting of continuances shall be in the sound discretion of the judge, provided, however, that the judge shall expedite the hearings whenever possible. A party requesting a continuance [shall supply three dates on which the parties will be available for rescheduling of the hearing. The judge will consider these dates in resetting the case.] may file a written motion or present the motion orally at the hearing. The motion shall include:

(1) the specific reason for the continuance;

(2) a statement of the number of motions for continuance previously filed in the case by each party; and

(3) for written motions, a certificate of service and a certificate of conference as required by §159.205 of this title (relating to Service of Documents on Parties). Failure to include a certificate of service and a certificate of conference when filing a motion for continuance may result in denial of the continuance request or subsequent continuance requests in the same case.

(d) With the exception of a hearing that is rescheduled in accordance with Texas Transportation Code § 524.032(b) [524.032(b)], no party is excused from appearing at a hearing until notified by SOAH that a motion for continuance has been granted.

(e) Responses to a motion for continuance, if any, should be promptly submitted in writing, except a response to a motion for continuance made on the date of the hearing may be presented orally at the hearing.

§159.209.Participation by Telephone or Videoconference.

(a) Videoconference. Upon appropriate notice, SOAH may allow or require an ALR hearing to be conducted by videoconference. [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.]

(1) The notice for a videoconference hearing shall include log-in information for joining the videoconference and provide an option for participants to access the hearing audio by telephone.

(2) If a party files a written objection within a reasonable time after receiving notice of a videoconference hearing, and states good cause for the objection, the judge shall timely rule on the objection in a manner consistent with Rule 21d of the Texas Rules of Civil Procedure.

(3) The judge may require a witness to appear on camera as a condition of being allowed to testify in a videoconference hearing.

(b) Telephone Conference Call. After SOAH acquires jurisdiction, a party may file a consent motion or notice of agreement by the parties to conduct an ALR hearing by telephone conference call. The judge may grant the motion and schedule the hearing to be conducted by telephone conference call with proper notice to the parties. [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.]

(1) The notice shall include dial-in information or instructions for joining the telephone conference call and include instructions for submitting documents and evidence to be considered in the proceeding.

(2) 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, which may require the witness to provide reasonable verification of their identity under oath.

(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.]

§159.210.Hearing on Written Submission.

(a) A party may file a motion or notice of agreement by the parties to convert an oral proceeding to a hearing on written submission at any time after SOAH acquires jurisdiction. The motion should acknowledge that the moving party or parties have filed and served or exchanged copies of all evidence necessary for resolution of the case.

(b) To expedite resolution of the case, the judge shall liberally grant requests to conduct hearings on written submission.

(c) For hearings conducted on written submission, the opportunity for the presentation of oral testimony and the examination of witnesses is waived by the parties. The factual matters asserted and evidence presented for the judge's consideration shall consist solely of the pleadings, motions, admitted exhibits, and orders filed in the administrative record.

(d) The judge shall issue a written decision for a hearing conducted on written submission in the same manner as provided by §159.253 of this title (relating to Decision of the Judge). The parties may appeal the decision as provided by § 524.041 of the Texas Transportation Code.

§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) ALR hearings shall be conducted in a fair and expeditious manner. In the interest of justice and efficiency, the judge may determine the order in which cases are heard, impose reasonable conditions on the length of time required for a hearing, question witnesses, and protect witnesses from abusive, repetitious, or unreasonably prolonged questioning.

(4) The judge shall exclude testimony or any evidence which is irrelevant, immaterial, or unduly repetitious.

(b) Evidence. Except as otherwise provided by [Pursuant to] Texas Government Code § 2001.081 [§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).

(4) 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 allow the witness to present or read the document to the opposing party.

(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. If the defendant fails to make a timely request, the judge may provide an interpreter or may continue the hearing to secure an interpreter. 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) Simultaneous ALR Appearances. If defense counsel is scheduled to appear in more than one ALR proceeding at the same time, the attorney may request the judge to facilitate the attorney's appearance at both hearings by controlling the order in which cases are heard. [If the defendant fails to make a timely request, the judge may provide an interpreter or may continue the hearing to secure an interpreter.]

§159.213.Failure to Attend Hearing and Default.

(a) If a party fails to appear for the hearing, the judge, on his or her own motion or on request of the opposing party, may proceed in that party's absence on a default basis. [Upon proof by DPS that notice of the hearing on the merits was sent to defendant's or, if defendant has legal representation, to defense counsel's last known address, and that notwithstanding such notice, defendant failed to appear, defendant's right to a hearing on the merits is waived. A rebuttable presumption that proper notice was given to defendant may be established by the introduction of a notice of hearing dated not less than 11 days prior to the hearing date and addressed to defendant's or defense counsel's last known address, as reflected on defendant's notice of suspension, request for hearing, driving record or similar documentation presented by DPS. Under those circumstances, the judge will proceed in defendant's absence and enter a default order upon DPS's motion.]

(b) 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 fifteen minutes after the scheduled time for hearing:

(1) failure to attend the telephone conference call or videoconference at the scheduled time; or

(2) failure to exercise due diligence to address a technical difficulty with attending a videoconference by contacting the SOAH Chief Clerk's Office for assistance or by utilizing the option to access the hearing audio by telephone.

(c) A default under this section must be supported by adequate proof that the notice of hearing was properly filed and served in accordance with §159.53 of this title (relating to Filing Documents) and §159.55 of this title (relating to Service of Documents on Parties).

(1) A rebuttable presumption that proper notice was given to a defendant is established by evidence that the notice of hearing was electronically served to the defendant, or if defendant has legal representation, to defense counsel, at the email address provided under §159.53 and §159.55 of this title, or at the email address as reflected on defendant's request for hearing. Alternatively, the judge may consider evidence that the notice of hearing was timely provided to defendant or if defendant has legal representation, to defense counsel, at the mailing address reflected on defendant's notice of suspension, driving record, or similar documentation presented by DPS.

(2) A rebuttable presumption that proper notice was given to DPS is established by evidence that information regarding the date, time, and location or method of appearance was electronically transmitted to the Department by the SOAH Chief Clerk's Office or issued by the judge to the DPS attorney of record at the email address(es) reflected in eFile Texas. Alternatively, the judge may consider evidence that notice of the scheduled hearing was published on SOAH's website and/or available to DPS through re:SearchTX.

(d) Defendant's Failure to Appear. A Defendant who requests a hearing and fails to appear without good cause waives the right to a hearing on the merits, and the judge will issue a decision and order authorizing the Department to suspend the Defendant's driver's license.

(e) Department's Failure to Appear. If the Department fails to appear through its attorney without good cause, the judge will issue an order dismissing the case without suspension or disqualification. A case dismissed under this subsection is dismissed with prejudice and may not be refiled.

(f) [(b)] Within ten business days after [of] the issuance of a default decision and order, the defaulting party [defendant ] may file a written motion with SOAH [and DPS] requesting that the default order be vacated because the party [defendant ] had good cause for failing to appear. In the motion, the party [defendant] must state the grounds for their failure to appear and whether the motion is opposed [DPS opposes the motion, and if DPS does oppose the motion, list dates and times for a hearing on the motion that are agreeable to both parties]. Regardless of whether the motion is opposed [Whether or not DPS opposes the motion], the judge may rule on the motion without setting a hearing or may set a hearing to consider the motion. A hearing on a motion to vacate a default order may be held by videoconference or telephone conference call. If the judge finds good cause for the party's [defendant's] failure to appear, the judge shall vacate the default order and reset the case for a hearing.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on May 7, 2024.

TRD-202402037

Shane Linkous

General Counsel

State Office of Administrative Hearings

Earliest possible date of adoption: June 23, 2024

For further information, please call: (512) 475-4993

1 TAC §§159.253 - 159.255, 159.257

Statutory Authority. The rule amendments are proposed under: (i) Texas Government Code § 2003.050, which provides that the Chief Administrative Law Judge shall adopt rules that govern procedures that relate to hearings conducted by SOAH; (ii) Texas Transportation Code § 524.002 and § 724.003, which provide that SOAH shall adopt rules to administer those chapters; and (iii) Texas Government Code § 2003.055, which provides that the Chief Administrative Law Judge shall develop and implement the effective use of technological solutions to improve the agency's ability to perform its functions.

Cross Reference to Statute. The proposed rule amendments affect Chapters 2001 and 2003 of the Texas Government Code, and Chapters 522, 524, and 724 of the Texas Transportation Code.

§159.253.Decision of the Judge.

(a) Upon conclusion of the hearing, the judge shall issue a written decision that includes findings of fact and conclusions of law.

(b) The decision of the judge is final and appealable. Except as authorized by §159.254 of this title (relating to Correction of Final Decision) no [No] party shall file a motion for rehearing or request to modify a decision with SOAH.

(c) The judge's decision does not determine the effective dates of any suspension that may be enforced by DPS.

(d) Any automated case data exchanged by SOAH with DPS regarding the disposition of ALR proceedings is provided for the sole purpose of administrative convenience and is not part of the administrative record. The outcome of a particular proceeding as reflected by the judge's final written decision or order takes precedence over any conflicting data reported to the DPS Enforcement and Compliance Service.

(e) DPS is solely responsible for ensuring that the Department administers the defendant's driving record and any suspension in a manner that is consistent with the judge's final disposition of the case.

§159.254.Correction of Final Decision.

(a) SOAH has no continuing jurisdiction to modify an ALR decision after it has been signed, except that the judge, on his or her own motion or on request of a party, may amend an ALR decision to:

(1) correct a clerical error in the original written decision, including, but not limited to, the unintentional entry of a decision using the wrong form or template; or

(2) conform the decision to reflect the correct statutory period of suspension.

(b) A request for correction must be filed as soon as possible after the error is discovered, but not later than 10 business days after the issuance of the original decision, and must specify the clerical error or period of suspension that is proposed for correction.

(c) The filing of a motion to correct a decision does not extend the deadline for appeal under Texas Transportation Code § 524.041 or stay any action that has been previously authorized.

(d) A corrected decision may only be issued if the error is apparent on the face of the record and a correction is required to accurately reflect the judge's intent at the time the original decision was entered. A corrected decision cannot be based on a request for reconsideration or new evidence or arguments that were not presented at the hearing on the merits, and may not be used to correct judicial error.

(e) The judge is not required to act on a request for correction of a final decision. Any corrected decision must be issued by the judge not later than the 29th day after the date the original ALR decision was signed.

§159.255.Appeal of Judge's Decision.

(a) Record on Appeal. Except as described by subsection (d) of this section, a person who appeals a SOAH decision is responsible for filing the record on appeal with the court. The record on appeal shall consist of the following:

(1) the [first] file-marked or stamped copy of all parties' motions or other pleadings;

(2) all written orders or decisions issued by the judge and any evidence of transmittal to the parties;

(3) all exhibits admitted into evidence;

(4) all exhibits not admitted into evidence but made a part of the record by a party as an offer of proof or bill of exceptions; and

(5) a transcription of the proceedings electronically recorded by SOAH.

(b) Notice to SOAH Required. A person who appeals a decision shall file a copy of the petition of appeal with SOAH. The copy submitted for filing must be filed-stamped or certified by the clerk of the court in which the petition is filed. Filing under this section satisfies the requirements of Transportation Code, § 524.041(c) to provide SOAH with a copy of the petition.

(c) [(b)] Appeal Transcript Requests. A person who intends to pursue the appeal [appeals] a suspension may obtain a written transcript of the administrative hearing by filing [sending] a written request to SOAH, together with a filed-stamped or certified copy of the petition of appeal, within ten days of filing the appeal and paying the applicable fees. The fees shall not exceed the actual cost of preparing or copying the transcript, and upon receipt of the fees, SOAH shall promptly furnish [the reviewing court and] both parties a certified copy of the record. SOAH is not required to prepare a written transcript for non-appealed cases, or to furnish a free transcript to a party who is unable to pay the applicable fee for preparation of the transcript. [The transcription of the electronic recording made by SOAH constitutes the official record for appellate purposes. For three years after notice of an appeal is filed, SOAH will maintain the file and original recording of proceedings. A copy of the file and recording will be available for review by the parties or a reviewing court, if needed.]

(d) Essential Need or Occupational License Only. A person who appeals a suspension for the sole purpose of seeking an essential need or occupational driver's license may be excused from filing the record on appeal if the administrative record is not required by local rules of the court where the appeal is filed.

(e) Records Retention for Appealed Cases. For three years after notice of an appeal is filed, SOAH will maintain the file and original recording of proceedings. A copy of the file and recording will be available for review by the parties or a reviewing court, if needed.

(f) [(c)] If a case is remanded for taking of additional evidence, the appellant must file with SOAH, within ten days of the signing of the reviewing court's remand order, a request for relief, including setting a hearing on remand. The request must include a copy of the remand order [and an estimate of the time required to present the additional evidence, if a hearing is requested.].

(g) [(d)] A remand under this section does not stay the suspension of a driver's license.

§159.257.Disposition of Criminal Charges and Expunction of Records.

(a) Except for acquittal of a criminal charge as provided by § 524.015(b) or § 724.048(c) of the Texas Transportation Code, the disposition or expunction of a criminal charge relating to an arrest that forms the basis of the ALR proceeding does not affect a driver's license suspension or bar any matter in issue in an ALR proceeding.

(b) The records of ALR proceedings at SOAH are subject to expunction only upon receipt by SOAH of a judicial court order of expunction that complies with the requirements of Texas Code of Criminal Procedure Article 55.06.

(c) A judicial court order of expunction based on the dismissal, and not the acquittal, of criminal charges does not require or authorize SOAH to expunge records relating to the ALR proceeding.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on May 7, 2024.

TRD-202402038

Shane Linkous

General Counsel

State Office of Administrative Hearings

Earliest possible date of adoption: June 23, 2024

For further information, please call: (512) 475-4993

The State Office of Administrative Hearings (SOAH) proposes the repeal of Title I, Chapter 167 in its entirety concerning the Dispute Resolution Process Applicable to Certain Consumer Health Benefits Disputes.

House Bill 2256, 81st R.S. (2009) enacted Chapter 1467 of the Texas Insurance Code relating to Out-Of-Network Claim Dispute Resolution. From September 1, 2009, to August 31, 2019, Insurance Code Chapter 1467 required SOAH to administer a mandatory "balance billing mediation" program for the resolution of certain consumer disputes relating to medical bills for out-of-network health benefit claims. Texas Insurance Code §1467.004 formerly required SOAH to adopt administrative rules relating to SOAH's implementation of the mediation program, and these rules were adopted as Title I, Chapter 167, Subchapters A, B, C, D, and E (Rules §§167.1 - 167.209). Senate Bill 1264, 86th R.S. (2019) amended chapter 1467 of the Insurance Code to establish a revised out-of-network claim dispute resolution program at the Texas Department of Insurance.

Although Section 3.03 of S.B. 1264 repealed relevant sections of Insurance Code, Chapter 1467 pertaining to SOAH's balance billing mediation program, Section 5.01 of S.B. 1264 provided that "The changes in law made by this Act apply only to a health care or medical service or supply provided on or after January 1, 2020. A health care or medical service or supply provided before January 1, 2020, is governed by the law in effect immediately before the effective date of this Act [Sept. 1, 2019], and that law is continued in effect for that purpose." This transition provision required SOAH to continue to administer balance billing mediations for both existing and new out-of-network health benefit claims that were eligible under the repealed Insurance Code provisions and SOAH rules.

On or about December 18, 2023, SOAH referred all of the remaining health benefit dispute cases that could not be successfully resolved by mediation to a special judge for trial in accordance with the requirements of the former Insurance Code §1467.057. Now that SOAH's administrative duties under the former law have been concluded, the repeal of SOAH's rules in Title 1, Chapter 167 is necessary to fully-implement S.B. 1264.

Fiscal Note. Kristofer S. Monson, Chief Administrative Law Judge for SOAH, has determined that for the first five-year period the proposed repeal is in effect, there will be no additional estimated cost, reduction in costs, or loss or increase in revenue to the state or local governments because of the repeal of Chapter 167. Additionally, Chief Judge Monson has determined that the repeal of Chapter 167 does not have foreseeable implications relating to the costs or revenues of state or local government.

Probable Economic Costs. Chief Judge Monson has determined for the first five-year period the proposed repeal is in effect, there will be no additional economic costs to persons required to comply with the repeal of the rule.

Local Employment Impact. The proposal has no effect on local economy; therefore, no local employment impact statement is required under Texas Government Code, §2001.022.

Small Business, Microbusiness, and Rural Community Impact: The proposal has no direct adverse economic impact for small businesses, microbusinesses, or rural communities; therefore, no regulatory flexibility analysis, specified in Texas Government Code, §2006.002, is required.

Cost Increase to Regulated Persons: The proposal does not impose a cost on regulated persons, another state agency, a special district, or a local government and, therefore, is not subject to Texas Government Code, §2001.0045.

Takings Impact Assessment. Chief Judge Monson has determined that the proposed repeal will not affect private real property interests, therefore SOAH is not required to prepare a takings impact assessment under Government Code §2007.043.

Public Benefit. Chief Judge Monson has determined for the first five-year period the proposed repeal is in effect, there will be a benefit to the general public because the proposed repeal will eliminate obsolete SOAH rules.

Government Growth Impact Statement. Pursuant to Government Code §2001.0221, the agency provides the following Government Growth Impact Statement for the proposed repeal. For the first five years the proposed repeal will be in effect, the agency has determined the following: (1) The proposed repeal does not create or eliminate a government program; (2) Implementation of the proposed repeal does not require the creation of new employee positions or the elimination of existing employee positions; (3) Implementation of the proposed repeal does not require an increase or decrease in future legislative appropriations to the agency; (4) The proposed repeal does not require an increase or decrease in fees paid to the agency; (5) The proposed repeal does not create a new form of regulation; (6) The proposed repeal does not expand, limit, or repeal existing regulations; (7) The proposed repeal does not increase the number of individuals subject to the rule's applicability; and (8) The proposed repeal does not positively or adversely affect this state's economy.

Public Comments. Written comments on the proposed rules may be submitted to State Office of Administrative Hearings, ATTN: Office of General Counsel, P.O. Box 13025, Austin, Texas 78711-3025 or by email to: rulemaking@soah.texas.gov with the subject line "Balance Billing Rule Comments." The deadline for receipt of comments is 5:00 p.m. on June 24, 2024. Any public comments will be addressed in the publication of the final adopted rule. All requests for a public hearing on the proposed rules must be received by the State Office of Administrative Hearings no more than fifteen (15) days after the notice of proposed rules have been published in the Texas Register.

SUBCHAPTER A. GENERAL

1 TAC §167.1, §167.3

Statutory Authority. The repeal is proposed under §2003.050, Texas Government Code, which authorizes SOAH to establish procedural rules for hearings conducted by SOAH.

Cross Reference to Statute. The proposed rule amendments affect 2003 of the Texas Government Code, and Chapter 1467 of the Texas Insurance Code. No other statutes, articles, or codes are affected by the repeal.

§167.1.Purpose and Scope.

§167.3.Definitions.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on May 10, 2024.

TRD-202402093

Shane Linkous

General Counsel

State Office of Administrative Hearings

Earliest possible date of adoption: June 23, 2024

For further information, please call: (512) 475-4993

1 TAC §167.51

Statutory Authority. The repeal is proposed under §2003.050, Texas Government Code, which authorizes SOAH to establish procedural rules for hearings conducted by SOAH.

Cross Reference to Statute. The proposed rule amendments affect 2003 of the Texas Government Code, and Chapter 1467 of the Texas Insurance Code. No other statutes, articles, or codes are affected by the repeal.

§167.51.Forms.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on May 10, 2024.

TRD-202402094

Shane Linkous

General Counsel

State Office of Administrative Hearings

Earliest possible date of adoption: June 23, 2024

For further information, please call: (512) 475-4993

1 TAC §§167.101, 167.103, 167.105, 167.107, 167.109

Statutory Authority. The repeal is proposed under §2003.050, Texas Government Code, which authorizes SOAH to establish procedural rules for hearings conducted by SOAH.

Cross Reference to Statute. The proposed rule amendments affect 2003 of the Texas Government Code, and Chapter 1467 of the Texas Insurance Code. No other statutes, articles, or codes are affected by the repeal.

§167.101.Mediator Qualifications.

§167.103.Roster of Mediators.

§167.105.Mediator Roster Update, Withdrawal, and Fee Arrangements.

§167.107.Appointment of a Mediator.

§167.109.Mediator Duties and Responsibilities.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on May 10, 2024.

TRD-202402095

Shane Linkous

General Counsel

State Office of Administrative Hearings

Earliest possible date of adoption: June 23, 2024

For further information, please call: (512) 475-4993

1 TAC §167.151

Statutory Authority. The repeal is proposed under §2003.050, Texas Government Code, which authorizes SOAH to establish procedural rules for hearings conducted by SOAH.

Cross Reference to Statute. The proposed rule amendments affect 2003 of the Texas Government Code, and Chapter 1467 of the Texas Insurance Code. No other statutes, articles, or codes are affected by the repeal.

§167.151.Mediator's Reports Following Mediation.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on May 10, 2024.

TRD-202402096

Shane Linkous

General Counsel

State Office of Administrative Hearings

Earliest possible date of adoption: June 23, 2024

For further information, please call: (512) 475-4993

1 TAC §§167.201, 167.203, 167.205, 167.207, 167.209

Statutory Authority. The repeal is proposed under §2003.050, Texas Government Code, which authorizes SOAH to establish procedural rules for hearings conducted by SOAH.

Cross Reference to Statute. The proposed rule amendments affect 2003 of the Texas Government Code, and Chapter 1467 of the Texas Insurance Code. No other statutes, articles, or codes are affected by the repeal.

§167.201.Special Judge Qualifications.

§167.203.Order of Referral to Special Judge.

§167.205.Roster of Special Judges.

§167.207.Appointment of Special Judge.

§167.209.Special Judge Roster Update, Withdrawal, and Fee Arrangements.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on May 10, 2024.

TRD-202402097

Shane Linkous

General Counsel

State Office of Administrative Hearings

Earliest possible date of adoption: June 23, 2024

For further information, please call: (512) 475-4993