1. (a) In contested cases, parties shall have the discovery rights provided in this section. For cases not adjudicated under this section or the APA, discovery shall be allowed as ordered by the ALJ.
2. (b) Parties may obtain discovery regarding any matter not privileged or exempted by the Texas Rules of Civil Procedure, Texas Rules of Evidence, or other rule or law, that is relevant to the subject matter of the proceeding.
3. (c) Discovery in a contested case may commence when SOAH acquires jurisdiction and no discovery may be sought after the commencement of the contested case hearing on the merits, unless permitted by the ALJ upon a showing of good cause.

4. (d) Parties may obtain discovery by the following methods: oral or written depositions; written interrogatories to a party; requests of a party for admission of facts and the genuineness or identity of documents; requests and motions for production, examination, and copying of documents and other tangible materials; and requests and motions for entry upon and examination of real property.

   1. (1) Interrogatories. Unless the ALJ directs otherwise, each party may serve no more than two sets of interrogatories to any other party. The number of questions, including subsections, in a set of interrogatories shall be limited so as not to require more than thirty answers.

      1. (A) Written interrogatories shall be answered by the party served or, if the party served is a public or private corporation or a partnership or association, by any officer or agent thereof, who shall furnish such information as is available to the party. The interrogatories shall be answered separately and fully in writing under oath. The answers shall be attested to by the person making them. The party upon whom the interrogatories have been served shall serve a copy of the answers on the party submitting the interrogatories within the time specified by the party serving the interrogatories, which specified time shall not be less than 15 days after the service of the interrogatories, unless the ALJ, upon motion and notice for good cause shown, enlarges or shortens the time.
      2. (B) Whenever a party is represented by an attorney, service of interrogatories and answers to interrogatories shall be made on the attorney unless service upon the party is ordered by the ALJ. True copies of the interrogatories and of any answers shall be served on all other parties or their attorneys at the time that any interrogatories or answers are served.
      3. (C) Interrogatories may relate to any matters which can be inquired into under the Texas Rules of Civil Procedure, but the answers, subject to any objections as to admissibility, may be used only against the party who answers or whose attorney answers the interrogatories. A party may be required in the party's answers to identify each person whom the party expects to call as an expert witness at the hearing, and to state the subject matter about which the expert is to testify.
      4. (D) Interrogatories may be served after a deposition has been taken, and a deposition may be sought after interrogatories have been answered, but the ALJ, on motion of the deposition witness or the party interrogated, may make such protective order as justice may require. The provisions of the Texas Rules of Civil Procedure, are applicable for the protection of the party from whom answers to interrogatories are sought under this section.
      5. (E) Where the answer to an interrogatory may be derived or ascertained from the business records of the party upon whom the interrogatory has been served or from an examination, audit, or inspection of such business records, or from a compilation, abstract, or summary based thereon, and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party served, it is a sufficient answer to such interrogatory to specify the records from which the answer may be derived or ascertained and to afford to the party serving the interrogatory reasonable opportunity to examine, audit, or inspect such records and to make copies, compilations, abstracts, or summaries.

   2. (2) Admissions. A party may serve upon any other party a written request for the admission of the truth of any matters within the scope of subsection (b) of this section that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request. Copies of the documents shall be served with the request unless they have been or are otherwise furnished or are made available for inspection and copying. Service shall be in accordance with §281.27 of this title (relating to Service of Documents on Parties).

      1. (A) Each matter as to which an admission is requested shall be separately set forth. The matter is admitted without necessity of an ALJ order unless the party to whom the request is directed timely serves upon the party requesting the admission a written answer or objection addressed to the request, signed by the party or the party's attorney. If objection is made, the reason for the objection shall be stated. The answer shall specifically deny the matter or set forth in detail the reasons that the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify its answer and deny only a part of the matter of which an admission is requested, the party shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless it states that it has made reasonable inquiry and that the information known or easily obtainable by it is insufficient to enable it to admit or deny. A party who considers that a matter of which an admission is requested presents a genuine issue for hearing may not, on that ground alone, object to the request; it may, subject to the provisions of the Government Code, §2003.0421, deny the matter or set forth reasons why the party cannot admit or deny it.
      2. (B) Any matter admitted under this section is conclusively established as to the party making the admission unless the ALJ on motion permits withdrawal or amendment of the admission. Subject to the duty to supplement discovery under this section, the ALJ may permit withdrawal or amendment of responses and deemed admissions upon a showing of good cause for such withdrawal or amendment or in the interest of justice, if the ALJ finds that the parties relying upon the responses and deemed admissions would not be unduly prejudiced and that the presentation of the merits of the action will be subserved thereby. Any admission made by a party under this section is for the purpose of the pending action only and neither constitutes an admission by the party for any other purpose nor may be used against the party in any other proceeding.

   3. (3) Depositions.

      1. (A) On its own motion or on the written request of any party to a contested case pending before it, and on deposit of sums with the executive director/secretary that will reasonably insure payment of the amounts estimated to accrue under this section, the board shall issue a commission, addressed to the several officers authorized by statute to take depositions to require that the deposition of a witness be taken, which commission shall authorize the issuance of any subpoenas necessary to require that the witness appear and produce, at the time the deposition is taken, books, records, papers, or other objects as may be necessary and proper for the purposes of the proceedings. The deposition of a member of the board may not be taken after a date has been set for hearing.
      2. (B) The place of taking the deposition shall be in the county where the witness resides or is employed or regularly transacts business in person.
      3. (C) The commission shall authorize and require an officer to whom it is addressed to examine the witness before the officer on the date and at the place named in the commission and to take answers under oath to questions that may be propounded to the witness by the parties to the proceeding or their attorneys, the board, or the attorneys for the agency. The commission shall require the witness to remain in attendance from day to day until the deposition is begun and completed.
      4. (D) The officer taking the oral deposition may not sustain objections to any of the testimony taken, or exclude any of it. The objections of the parties or attorneys engaged in taking testimony shall be reserved for determination by the hearing officer or ALJ. The hearing officer or ALJ is not confined to objections made at the taking of the testimony.
      5. (E) The testimony shall be reduced to writing or typewriting by the officer taking the deposition, or by a person under the officer's personal supervision, or by the deposition witness in the officer's presence, and by no other person, and shall after it has been reduced to writing or typewriting, be subscribed to by the deponent.
      6. (F) When the testimony is fully transcribed, the deposition shall be submitted to the witness for examination and read to or by the witness, unless the examination and reading are waived in writing by the witness and by the parties. However, if the witness is a party to the contested case pending before the agency and has an attorney of record, the deposition officer shall notify the attorney of record in writing by registered or certified mail that the deposition is ready for examination and reading at the office of the deposition officer. If the witness does not appear and examine, read, and sign the deposition before the twenty-first day after the date on which the notice is mailed, the deposition shall be returned as provided in this chapter for unsigned depositions. In any event, the witness shall sign the deposition at least three days before the date of the hearing, or it shall be returned as provided in this chapter for unsigned depositions. Any changes in form or substance that the witness desires to make shall be entered on the deposition by the officer with a statement of the reasons given by the witness for making the changes. The deposition shall then be signed by the witness, unless the parties present at the taking of the deposition by stipulation waive the signing or the witness is ill, cannot be found, or refuses to sign. If the deposition is not signed by the witness, the officer shall sign it and state on the record the fact of the waiver, illness, or absence of the witness or the fact of the refusal to sign, together with the reason, if any, given for failure to sign. The deposition may then be used as though signed by the witness.
      7. (G) Any deposition may be returned to the agency either by mail, or by a party interested in taking the deposition, or by any other person. If returned by mail, the agency shall endorse on the deposition that it was received from the post office and shall cause the agency employee so receiving the deposition to sign it. If not sent by mail, the person delivering it to the agency shall make affidavit before the agency that he received it from the officer before whom it was taken, that it has not been out of his possession since, and that it has undergone no alteration.
      8. (H) A deposition, after being filed with the agency, may be opened by any employee of the agency at the request of either party or his attorney. The employee shall endorse on the deposition on what day and at whose request it was opened, sign the deposition, and it shall remain on file with the agency for the inspection of any party. A party is entitled to use a deposition in the contested case pending before the agency without regard to whether cross interrogatories have been propounded.

      9. (I) A witness or deponent in a contested case who is not a party and who is subpoenaed or otherwise compelled to attend a hearing or proceeding to give a deposition or to produce books, records, papers, or other objects that may be necessary and proper for the purposes of any proceeding under the authority of the Act is entitled to receive:

         1. (i) mileage and/or commercial airfare and/or public transportation at the rate allowed for state employees for going to and returning from the place of the hearing or the place where the deposition is taken, if the place is more than 25 miles from the person's place of residence;
         2. (ii) a fee of not less than $25 a day for each day or part of a day the person is necessarily present as a witness or deponent; and
         3. (iii) reimbursement of the meal and lodging expenses at the rate provided for state employees for going to and returning from the place of the hearing or the place where the deposition is taken.
      10. (J) Mileage and fees to which a witness is entitled under this section shall be paid by the party at whose request the witness appears or the deposition is taken, on presentation of proper vouchers sworn by the witness and approved by the agency. In the case of failure of a person to comply with a subpoena or commission issued by the agency, the agency may take any action provided by law.

   4. (4) Orders for Production or Inspection.

      1. (A) On the motion of a party and on notice to all other parties, and subject to limitations of the kind provided for discovery under the Texas Rules of Civil Procedure Rule, the hearing officer or ALJ may order any party:

         1. (i) to produce and to permit the party making the motion or a person on behalf of that party to inspect and to copy or photograph a designated document, paper, book, account, letter, photograph, or tangible thing in the party's possession, custody, or control that is not privileged and constitutes or contains, or is reasonably calculated to lead to the discovery of, evidence that is material to a matter involved in the contested case; and
         2. (ii) to permit entry to designated land or other property in the party's possession or control to inspect, measure, survey, or photograph the property or a designated object or operation on the property that may be material to a matter involved in the contested case.
      2. (B) The order must specify the time, place, and manner of making the inspection, measurement, or survey or of making copies or photographs and may prescribe other terms and conditions that are just.
      3. (C) The identity and location of any potential party or witness in a contested case may be obtained from any communication or other paper in the possession, custody, or control of a party, and any party may be required to produce and permit the inspection and copying of the reports, including factual observations and opinions, of an expert who will be called as a witness. Provided, that the rights granted in this section shall not extend to other written statements of witnesses or other written communications passing between agents or representatives or the employees of any party to the suit or to other communications between any party and such party's agents, representatives, or other employees, where made after the occurrence or transaction on which the contested case is based, and made in connection with the prosecution, investigation, or defense of the contested case or the circumstances from which the case arose.

      4. (D) Any person, whether or not a party, is entitled to obtain, on request, a copy of any statement in a party's possession, custody, or control that the person has previously made about the contested case or its subject matter. If the request is refused, the person may move for an order of production under this subsection. For the purpose of this subsection, a statement previously made is:

         1. (i) a written statement signed or otherwise adopted or approved by the person making it; or
         2. (ii) a stenographic, mechanical, electrical, or other recording, or a transcription of the recording, which is a substantially verbatim recital of an oral statement by the person making it and that was contemporaneously recorded.
5. (e) Written interrogatories, requests for admission, requests and motions for production, and requests for entry upon and examination of real property shall initially be directed to the party from which discovery is being sought. Copies of discovery requests and answers to those requests shall not be filed with SOAH unless directed by the ALJ or when in support of a motion to compel, motion for protective order, or motion to quash.
6. (f) The ALJ may establish deadlines as necessary for discovery requests and responses. if the ALJ does not establish a deadline, responses to discovery requests, except for notices of depositions, shall be made within 20 days after receipt. Parties may extend response deadlines in accordance with §281.32 of this title (relating to Stipulations) or by motion submitted to the ALJ if the parties are unable to agree. If such motion is timely filed by a party, it may be granted for good cause shown.
7. (g) A responding party is under a continuing duty to reasonably supplement its discovery responses under the circumstances specified in the Texas Rules of Civil Procedure.

8. (h) Objections to discovery requests shall be filed within ten days after receipt.

   1. (1) The objections shall be a separate pleading. The discovery request to which an objection is being filed shall be stated and the specific grounds for the objection shall be separately stated for each question. If an objection pertains to only part of a question, that part shall be clearly identified. All arguments upon which the objecting party relies shall be presented in full in the objection.
   2. (2) If an objection is founded upon a claim of privilege or exemption under Texas Rules of Civil Procedure, the ALJ may require the objecting party to provide an index that lists, for each document claimed privileged or exempt from discovery: the date and title of the document; the preparer or custodian of the information; to whom the document was sent and from whom it was received; and the claimed privilege(s) or exemption(s). A full a complete explanation of the claimed privilege or exemption shall be provided. The index and explanations may be public documents if so determined by the ALJ after review of the index and accompanying explanations. The documents claimed to be privileged or exempted from discovery shall be provided to the ALJ in camera by the deadline established by the ALJ.

9. (i) The party seeking discovery shall file a motion to compel within ten days of receipt of the pertinent objection or alleged failure to comply with discovery. Absence of a motion to compel filed by the party seeking discovery will be construed as an indication that the parties have resolved their discovery dispute. All motions to compel shall include a certificate of conference:

   1. (1) averring the parties conferred, negotiated in good faith, and were unable to resolve the dispute prior to submitting the dispute to the ALJ for resolution; or
   2. (2) averring the movant has made reasonable, but unsuccessful, attempts to contact opposing counsel and succinctly describing the attempts made.

10. (j) The ALJ may issue any order in the interest of justice necessary to protect the person or party seeking relief from undue burden, unnecessary expense, harassment or annoyance, or invasion of personal, constitutional, or property rights. Any person or party from whom discovery is sought may file a motion for a protective order, specifying the grounds for the protective order. Motions and responses may include affidavits, discovery pleadings, or other pertinent documents. The ALJ's authority as to such orders extends to, but is not limited by, any of the following:

    1. (1) ordering that requested discovery not be sought in whole or in part, or that the extent or subject matter of discovery be limited, or that it not be undertaken at the time or place specified;
    2. (2) ordering that the discovery be undertaken only by such method or upon such terms and conditions or at the time and place directed by the ALJ; or
    3. (3) ordering that for good cause shown, results of discovery be sealed or otherwise adequately protected, that their distribution be limited, or that their disclosure be restricted. Any order under this paragraph shall be made in accordance with the APA, the referring agency's statute, and other applicable rule or law.

11. (k) An agreement affecting a deposition upon oral examination is enforceable if the agreement is recorded in the deposition transcript. Unless the ALJ orders otherwise, the parties may, by written agreement:

    1. (1) provide that depositions be taken at any time or place, upon any notice, and in any manner and when so taken may be used like other depositions; and
    2. (2) modify the procedures provided by these rules for other methods of discovery.

Source Note:The provisions of this §281.33 adopted to be effective December 30, 1998, 23 TexReg 13073; amended to be effective September 8, 2002, 27 TexReg 8213.