1. (a) This chapter and 1 Texas Administrative Code, Chapter 155 (relating to Rules of Procedure) shall govern disposition prior to hearing, default, and attendant relief.
2. (b) The executive director may issue and sign orders on behalf of the board resolving a case by waiver, stipulation, compromise, agreed settlement, consent order, agreed statement of facts, or any other informal or alternative resolution agreed to by the parties and not precluded by law.
3. (c) If supported by an ALJ's proposal for decision, the board may dispose of a case prior to a contested case hearing on the merits on the following grounds: unnecessary duplication of proceedings; res judicata; withdrawal; mootness; lack of jurisdiction; failure of a party requesting relief to timely file or file in proper form a pleading that would support an order or decision in that party's favor; failure to comply with an applicable order, deadline, rule, or other requirement issued by the board, the executive director, or the presiding ALJ; failure to state a claim for which relief can be granted; or failure to prosecute.

4. (d) For purposes of this chapter, an event described in paragraphs (1) or (2) of this subsection shall constitute a default on the part of a respondent in a contested case:

   1. (1) the failure of the respondent to timely file a written answer in proper form as required by this chapter; or
   2. (2) the failure of the respondent to appear in person or by authorized representative on the day and at the time set for hearing in a contested case, regardless of whether a written answer has been filed.

5. (e) In the event a respondent defaults, the petitioner may seek from the ALJ or the board or both the appropriate relief as provided by paragraphs (1)-(3) of this subsection, in addition to and in conformance with any remedies for default available under 1 Texas Administrative Code, Chapter 155:

   1. (1) Upon the failure to timely file a written answer in proper form as provided by §249.27 of this title (relating to answers) and 1 Texas Administrative Code, Chapter 155, the ALJ may propose entry of a default judgment against the respondent. The board may dispose of the case by entering a default judgment against the respondent and granting any relief requested in the petition, including the revocation of a certificate. Upon notice of the board's disposition, the ALJ shall dismiss the case from the office's docket.

   2. (2) The petitioner, upon oral or written motion, shall be entitled to a continuance of a contested case hearing for a reasonable period of time determined by the ALJ if all the following conditions exist:

      1. (A) the respondent has failed to timely file a written answer in proper form as provided by §249.27 of this title and 1 Texas Administrative Code, Chapter 155;
      2. (B) the board has not disposed of the case; and
      3. (C) both the petitioner and the respondent appear in person or by authorized representative on the date and time at a scheduled hearing before the office.
   3. (3) Upon the failure to appear in person or by authorized representative on the date and time at a scheduled hearing before the office, regardless of whether a written answer has been filed, the ALJ may propose entry of a default judgment against the respondent pursuant to 1 Texas Administrative Code, §155.55 (relating to failure to attend hearing and default) or abate proceedings in the case and defer to the board for disposition. The board may dispose of the case by entering a default judgment and granting any relief requested in the petition, including the revocation of a certificate. Upon notice of the board's disposition, the ALJ shall dismiss the case from the office's docket.

Source Note:The provisions of this §249.35 adopted to be effective March 31, 1999, 24 TexReg 2304.