1. (a) Default. If a party that does not bear the burden of proof and 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. If a proposal for decision or final decision is issued, 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;
   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; and
   3. (3) the notice satisfies the requirement of Texas Government Code, §2001.051 and §2001.052, and §155.401 of this title (relating to Notice of 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) Upon receiving the required showing of proof to support a default, the judge may announce the default, recess the hearing, issue an order dismissing the case from the SOAH docket, and return the file to the referring agency for informal disposition on a default basis in accordance with Texas Government Code, §2001.056. If there is adequate proof of notice to support a default, the judge shall include a finding of adequate notice in the order dismissing the case from the SOAH docket.
5. (e) In the absence of receiving adequate proof to support a default, the judge shall continue the case and direct the party responsible for the provision of notice to provide adequate notice. 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.
6. (f) Motion to set aside default. A party may file a motion with SOAH no later than ten days after the hearing to set aside a default announced at the hearing and to reopen the record. The judge will not issue a dispositive order or proposal for decision during this ten-day period. If a timely motion to set aside a default is filed, the judge may grant the motion, set aside the default, and reopen the hearing for good cause shown, or in the interests of justice.

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.