1. (a) The Respondent in a disciplinary matter shall file an Answer to the Formal Complaint and to any Amendment to the Formal Complaint.
2. (b) The Answer shall admit or deny each of the allegations in the Formal Complaint or Amendment.
3. (c) If the Respondent fails to file an Answer to the Formal Complaint within twenty days of the date of service, the matter shall be considered a default case.

4. (d) In a case of default, the Respondent will be deemed to have

   1. (1) admitted all the factual allegations in the Formal Complaint;
   2. (2) waived the opportunity to show compliance with the law;
   3. (3) waived the opportunity for a hearing on the Formal Complaint; and
   4. (4) waived objection to the recommended sanction in the Formal Complaint.

5. (e) If the Respondent fails to file a written Answer within the time period prescribed by these rules, the Executive Director may recommend that the Board enter a Default Order based upon a Determination of Default.

   1. (1) If no written Answer has been filed within twenty (20) days after the date of service, the Board attorney assigned to the matter may present the administrative record of the case, including the Formal Complaint, to the General Counsel for the Board. The General Counsel shall determine whether the Complaint was properly served.
   2. (2) In the event the General Counsel determines that the Formal Complaint was properly served and that the Respondent has failed to timely file a written Answer, as required by subsection (a) of this section, the General Counsel shall issue a Determination of Default, which shall be served on the Respondent and filed at SOAH. The Determination of Default shall specifically state the facts on which the General Counsel has based the Determination of Default, and summarize the requirements by which a Determination of Default or Default Order may be set aside, as provided in paragraphs (4) - (7) of this subsection. When the Determination of Default is issued by the General Counsel, the Board Staff attorney shall file a motion with SOAH requesting that the matter be remanded to the Board to allow consideration of the Determination of Default, and serve the motion on the Respondent.
   3. (3) An Answer received from the Respondent after a Determination of Default has been issued by the General Counsel shall not be filed.

   4. (4) In the event that the Respondent wishes to file an Answer after a Determination of Default has been issued, but before a Default Order has been adopted by the Board, the Respondent must file a Motion to Set Aside the Determination of Default, which shall show the Board that:

      1. (A) the failure to timely file a written Answer was not intentional or the result of conscious indifference but was due to a mistake or accident;
      2. (B) the Respondent has a meritorious defense; and
      3. (C) the setting aside of the Determination of Default will not cause any delay or injury to the Board.
   5. (5) The Board shall consider the Formal Complaint, the Determination of Default, and any Motion to Set Aside the Determination of Default, at a meeting of the Board not less than twenty days after the date of the Determination of Default. If the Board concurs with the findings in the Determination of Default, the Board may deem the allegations in the Complaint as true and enter a Default Order.

   6. (6) In the event that the Respondent wishes to file an Answer after a Default Order has been entered by the Board, but before the time for filing a Motion for Rehearing has expired, the Respondent must file a Motion for Rehearing to Set Aside Default Order, which shall show that:

      1. (A) the failure to timely file a written Answer was caused by fraud, accident, or wrongful act or official mistake of the Board;
      2. (B) the failure to timely file a written Answer was not the result of the Respondent's fault or negligence; and
      3. (C) the Respondent has a meritorious defense.
   7. (7) The Motion for Rehearing shall be supported by affidavits and documentary evidence that present a prima facie case for a meritorious defense.

6. (f) Upon consideration of the case, the Board may:

   1. (1) enter a default order under §2001.056 of the APA; or
   2. (2) order the matter to be set for a hearing at SOAH.
7. (g) The Respondent may amend his or her Answer at any time permitted by the APA or SOAH rules.
8. (h) The first answer filed shall be entitled "Answer," the first amended answer filed shall be entitled "First Amended Answer," and so forth.
9. (i) Any default judgment granted under this section will be entered on the basis of the factual allegations in the Formal Complaint contained in the Notice, and upon proof of proper notice to the Respondent. For purposes of this section, proper notice means notice sufficient to meet the provisions of the Texas Government Code §2001.054 and §107.17 of this title. Such notice shall also include the following language in capital letters in 12 point boldface type: FAILURE TO FILE A WRITTEN ANSWER TO THE FORMAL COMPLAINT, EITHER PERSONALLY OR BY LEGAL REPRESENTATIVE, WILL RESULT IN THE ALLEGATIONS CONTAINED IN THE FORMAL COMPLAINT BEING ADMITTED AS TRUE AND THE PROPOSED RECOMMENDATION OF STAFF SHALL BE GRANTED BY DEFAULT.
10. (j) A Motion for Rehearing which requests that the Board vacate its Default Order under this section shall be granted if the movant proves by the preponderance of the evidence that the failure to answer the Formal Complaint was not intentional or the result of conscious indifference, but due to accident or mistake--provided that the movant has a meritorious defense to the factual allegations contained in the Formal Complaint and vacating the Default Order will occasion no delay or otherwise work an injury to the Board.

Source Note:The provisions of this §107.24 adopted to be effective September 14, 2010, 35 TexReg 8342.