1. (a) If a party who does not bear the burden of proof and to whom a notice of hearing with factual allegations is served or provided fails to appear for the hearing, the judge may proceed in that party's absence on a default basis.

2. (b) A default proceeding under this section requires adequate proof of the following:

   1. (1) the notice of hearing included a disclosure in at least 12-point, bold-face type that the factual allegations listed in the notice could be deemed admitted and that the relief sought in the notice of hearing might be granted by default against the party that fails to appear at the hearing;
   2. (2) the notice of hearing satisfies the requirements of Tex. Gov't Code, §2001.051 and §2001.052, and §155.401 of this chapter; and

   3. (3) the notice of hearing was:

      1. (A) received by the defaulting party; or
      2. (B) sent by first class or certified mail to the party's last known address as shown by the referring agency's records, and the referring agency's statute or rules authorize service of the notice of hearing by sending it to the party's last known address.
3. (c) In the absence of adequate proof to support a default, the judge shall continue the case and direct the party responsible to provide adequate notice of hearing. If the responsible party persists in failing to provide adequate notice, the judge may dismiss the case from the SOAH docket without prejudice to refiling.

4. (d) Upon receiving the required showing of proof to support a default, the judge may issue one of the following:

   1. (1) Default dismissal and remand. In default proceedings where SOAH is not authorized by law to render a final decision in the proceeding, the judge may issue an order finding adequate notice, conditionally dismissing the case from the SOAH docket, and conditionally remanding the case to the referring agency for informal disposition on a default basis in accordance with Tex. Gov't Code §2001.056.
   2. (2) Default proposal for decision. In default proceedings where SOAH is not authorized by law to render a final decision in the proceeding, the judge may deem admitted the factual allegations in the notice of hearing and issue a proposal for decision.
   3. (3) Default decision. In default proceedings where SOAH is authorized by law to render a final determination in the proceeding, the judge may deem admitted the factual allegations in the notice of hearing and issue a default decision.

5. (e) Default dismissals and remands.

   1. (1) A conditional order of dismissal and remand issued under subsection (d) of this section shall inform the party of the opportunity to have the default set aside under this subsection by filing an adequate motion no later than 15 days after the issuance of the conditional order of dismissal and remand.

   2. (2) If a motion to set aside a default is filed within 15 days after the issuance of a conditional order of dismissal and remand, the judge will rule on the motion and either:

      1. (A) grant the motion, set aside the default, and reopen the hearing for good cause shown or in the interests of justice; or
      2. (B) deny the motion and issue a final order of dismissal and remand.
   3. (3) In the absence of a timely motion to set aside a default, a conditional order of dismissal and remand shall become final on the sixteenth day after its issuance without further action by the judge.
   4. (4) Dismissal under this section removes the case from the SOAH docket without a decision on the merits.

6. (f) Default proposals for decision.

   1. (1) A default proposal for decision issued under subsection (d) of this section shall inform the party of the opportunity to have the default set aside under this subsection by filing an adequate motion no later than 15 days after the issuance of the default proposal for decision.
   2. (2) If a motion to set aside a default is filed within 15 days after the issuance of a default proposal for decision, the judge may grant the motion, set aside the default, and reopen the hearing for good cause shown or in the interests of justice.

7. (g) Default decisions.

   1. (1) Default decisions are subject to motions for rehearing as provided for in the APA.
   2. (2) A default decision issued under subsection (d) of this section shall inform the party of the opportunity to have the default set aside by filing a motion for rehearing under Tex. Gov't Code Chapter 2001, Subchapter F.

Source Note:The provisions of this §155.501 adopted to be effective November 26, 2008, 33 TexReg 9451; amended to be effective September 22, 2011, 36 TexReg 6257; amended to be effective January 1, 2017, 41 TexReg 8593.