1. (a) Default. If a party to whom a notice of hearing is served or provided under this section fails to appear for hearing, the judge may proceed in that party's absence on a default basis. In the proposal for decision or final decision, the factual allegations listed in the notice of hearing will be deemed admitted.

2. (b) Proof to support default. Any default proceeding under this section requires adequate proof of the following:

   1. (1) proper notice was received by the defaulting party; and
   2. (2) the notice included a disclosure in at least 12-point, bold-face type that the factual allegations listed in the notice could be deemed admitted, and the relief sought in the notice of hearing might be granted by default against the party that fails to appear at hearing.

3. (c) Alternative showing of notice. In the alternative, when it is not possible to prove actual receipt of notice, a hearing may proceed on a default basis if:

   1. (1) the referring agency's statute or rules authorize service of the notice of hearing by sending it to the party's last known address as shown by the referring agency's records; and
   2. (2) there is credible evidence that the notice of hearing was sent by first class or certified mail to such address.
4. (d) Motion to set aside default. A party may file a motion no later than ten days after the hearing to set aside a default and to reopen the record if a proposal for decision or a final decision has not been issued. The judge may grant the motion, set aside the default, and reopen the hearing for good cause shown.

5. (e) Judge's authority.

   1. (1) If a party fails to appear at the hearing, the judge may:

      1. (A) grant a continuance or dismissal from SOAH's docket to allow the referring agency to dispose of the case on a default basis under Tex. Gov't Code §2001.056 and the referring agency's rules;
      2. (B) issue a default proposal for decision or final decision; or
      3. (C) deny the relief sought if the notice of hearing fails to establish the necessary elements of the case.
   2. (2) The judge has the authority to determine whether proper and adequate notice under Tex. Gov't Code Chapter 2001 and §155.401 of this title (relating to Notice of Hearing) was given.

Source Note:The provisions of this §155.501 adopted to be effective November 26, 2008, 33 TexReg 9451.