1. (a) Disposition by default. Disposition by default shall mean the issuance of an order against a party who does not have the burden of proof, in a proceeding initiated by the Legal and Enforcement Division of the commission, in which the allegations and all documents attached to the Notice of Violation against that party contained in the notice of hearing are deemed admitted as true, upon the offer of proof that proper notice was provided to the defaulting party. The order may include the suspension or revocation of any certificates, licenses, or registrations the defaulting party has with the commission. The order shall not include the assessment of penalties.

2. (b) Failure to appear.

   1. (1) The commission may proceed in a party's absence with a disposition by default, without further notice, if a party who does not have the burden of proof fails to appear in person or through a duly authorized representative, on the day and time set for hearing.

   2. (2) Failure of a party who does not have the burden of proof to appear at the hearing entitles the commission staff to:

      1. (A) a continuance at the time of the contested case hearing for a reasonable period to be determined by the commission; or
      2. (B) request issuance of a default order by the commission.
   3. (3) If a party who does not have the burden of proof appears at the hearing, the commission may refer the matter to the State Office of Administrative Hearings for an evidentiary hearing.
   4. (4) The commission may fully consider and dispose of the pending matter if notice has been provided in accordance with §22.54 of this title (relating to Notice to Be Provided by the Commission), and Texas Government Code Annotated §2001.054 (Vernon 2000, Supplement 2003) (APA).

3. (c) Prerequisites for default proceeding.

   1. (1) The commission gives 30 days notice of the prehearing conference and the hearing on the merits by certified mail, return receipt requested, to the respondent.
   2. (2) At least 30 days has passed since the notice of the prehearing conference and the hearing on the merits was issued under paragraph (1) of this subsection.
   3. (3) The notice of hearing must clearly state that if the respondent fails to appear at the hearing, a default final order may be issued without further notice.

4. (d) Admission of evidence.

   1. (1) The Legal and Enforcement Division shall provide evidence, including, but not limited to, affidavits, exhibits, pleadings, or oral testimony, to support the issuance of the default final order and to demonstrate that the respondent received proper notice under subsection (c)(1) of this section and §22.54 of this title.
   2. (2) If the respondent fails to appear at the hearing, the factual evidence presented under paragraph (1) of this subsection may be admitted.
5. (e) Default order. Default final orders shall contain findings of fact and conclusions of law sufficient to support the relief ordered.
6. (f) Motions for rehearing. Any party to a proceeding under this section, including a party against whom a default order is rendered, may file a motion for rehearing pursuant to §22.264 of this title (relating to Rehearing).

Source Note:The provisions of this §22.183 adopted to be effective October 20, 2003, 28 TexReg 9071.