1. (a) Filing of documents. All documents relating to any pending proceeding must be filed with the Texas Department of Human Services' (DHS's) Hearings Department, with a copy served on each party. Documents are considered filed with the DHS's Hearings Department only when received by the Hearings Department. If a contested case has been transferred to the State Office of Administrative Hearings (SOAH), the document also must be filed with SOAH.
2. (b) Agreements to be in writing. Stipulations or agreements between parties, their attorneys, or representatives can only be enforced when they are written, signed by the parties or their authorized representatives, and filed, or dictated into the record during the course of a hearing. This section shall not be interpreted as limiting a party's ability to waive, modify, or stipulate any right or privilege afforded by these sections, unless precluded by law.
3. (c) Discovery. Discovery may proceed under the Administrative Procedures Act and the Texas Rules of Civil Procedure immediately upon the filing of a request for a hearing.
4. (d) Subpoenas. On the written request of any party, on a showing of good cause, and on deposit of sums that will reasonably ensure payment of the amounts estimated to accrue under this section, the administrative law judge may issue a subpoena addressed to the sheriff or any constable to require the attendance of witnesses and the production of books, records, papers, or other objects as may be necessary and proper for the purposes of the proceedings. The party requesting the subpoena is responsible for preparation and service of the subpoena. If a party is not represented by an attorney, the administrative law judge may prepare the subpoena. If a person fails to comply with a subpoena, the requesting party may bring suit to enforce the subpoena in a district court in the county in which the hearing is conducted.

5. (e) Informal disposition of appeal. At any time before the conclusion of a hearing, informal disposition of a case may be made in writing, by

   1. (1) stipulation,
   2. (2) agreed settlement,
   3. (3) consent order,
   4. (4) default,
   5. (5) dismissal for want of prosecution,
   6. (6) withdrawal of the adverse action by the department, or
   7. (7) withdrawal of the request for a hearing by the petitioner.

6. (f) Default remedies.

   1. (1) Default is the failure of the petitioner to appear in person or by legal representative on the day and at the time set for hearing in a contested case, regardless of whether a written response has been filed.
   2. (2) In the event the petitioner is in default, DHS is entitled to seek informal disposition by default from the commissioner or his designee. The administrative law judge appointed by SOAH grants any motion by DHS to seek informal disposition by the commissioner, or his designee, of the case by default.
   3. (3) For purposes of this subchapter, "disposition by default" means the issuance of an order against the petitioner in which the allegations against the petitioner are deemed admitted as true, upon the offer of proof that proper notice was provided to the petitioner. Proper notice means notice sufficient to meet the provisions of the Government Code, §§2001.051, 2001.052, and 2001.054.
   4. (4) After informal disposition of a contested case by default, a motion by the petitioner to set aside the default order and reopen the record is granted if the petitioner establishes good cause for the failure to attend the hearing. A motion to set aside the default order and reopen the record is filed with DHS's Hearings Department before the time the order of the commissioner becomes final. A motion to set aside the default order and reopen the record is not a motion for rehearing, is not to be considered a substitute for a motion for rehearing, and has no effect on either the statutory time periods for filing a motion for rehearing, or for ruling on a motion for rehearing.

7. (g) Dismissal for failure to prosecute remedies.

   1. (1) Failure to prosecute is the failure of the respondent to appear in person or by legal representative on the day and at the time set for hearing in a contested case, regardless of whether a written response has been filed.
   2. (2) In the event the respondent fails to make an appearance, the petitioner is entitled to seek dismissal for want of prosecution from the commissioner or his designee. The administrative law judge appointed by SOAH grants any motion by the petitioner to seek informal disposition by the commissioner, or his designee, of the case by dismissal for want of prosecution.
   3. (3) After informal disposition of a contested case by dismissal for want of prosecution, a motion by the respondent to set aside the dismissal order and reopen the record is granted if the respondent establishes good cause for the failure to attend the hearing. A motion to set aside the default order and reopen the record is filed with DHS's Hearings Department before the time the order of the commissioner becomes final. A motion to set aside the default order and reopen the record is not a motion for rehearing, is not to be considered a substitute for a motion for rehearing, and has no effect on either the statutory time periods for the filing of a motion for rehearing or for ruling on a motion for rehearing.

Source Note:The provisions of this §357.488 adopted to be effective November 1, 2001, 26 TexReg 8356; transferred effective September 1, 2004, as published in the Texas Register September 17, 2004, 29 TexReg 9013.