1. (a) Any party adversely affected by a decision of the executive director in a docketed appeal may appeal the decision to the board of trustees, unless by statute or other rule the decision of the executive director is the final decision of TRS. Written notice of appeal and any associated exceptions or briefing under subsection (d) of this section must be filed with the executive director by the later of:

   1. (1) 20 days after the decision of the executive director is mailed; or
   2. (2) the number of days after the date the decision of the executive director is mailed equal to the number of days it took the executive director to render the decision in the proceeding.

2. (b) The number of days it took the executive director to render the decision in a proceeding is calculated from:

   1. (1) if exceptions to a proposal for decision are not filed, the date of the deadline to file exceptions to a proposal for decision in the proceeding under §43.301(b) of this chapter (relating to Proposals for Decisions and Exceptions) to the date the decision of the executive director is mailed; or,
   2. (2) if exceptions to a proposal for decision are filed, the date the administrative law judge takes action on the filed exceptions to the date the decision of the executive director is mailed.
3. (c) If notice of appeal is timely filed, the decision of the executive director shall serve as a proposal for decision to the board.
4. (d) If a decision of the executive director is appealed, the parties may file additional exceptions or briefs and replies. Additional exceptions or briefs must be filed and served at the same time as the notice of appeal. Replies shall be filed and served within 15 days of the filing of the notice of appeal and exceptions or briefs. The executive director may modify the filing deadlines. Briefs and replies filed under this section may not include additional evidence not previously admitted into the administrative record of the proceeding.
5. (e) A notice of appeal to the Board of Trustees must also include a statement whether the appealing party is requesting oral argument before the board of trustees and, if oral argument is set, whether the party prefers to appear in person or virtually. A notice of appeal that does not include a statement regarding oral argument shall be deemed as not requesting oral argument. A notice of appeal that does not include how the party requests to appear for oral argument shall be deemed as a request to appear in person.
6. (f) A nonappealing party may also request oral argument before the board of trustees or request that oral argument not be granted in the party's reply to the appealing party's notice of appeal. The nonappealing party may also state whether the party requests to appear in person or virtually for oral argument.
7. (g) The executive director, in the executive director's sole discretion, shall determine whether to grant oral argument in a given appeal and how the parties shall appear for oral argument, if granted. The executive director shall consult with the chairman of the board of trustees in making a determination under this subsection and shall make the determination by order no later than 30 days prior to the date of the hearing. The order shall be provided to all parties to the appeal.

8. (h) The final decision in an appeal shall be based upon the existing record in the case, including any exceptions, oral argument, or briefing filed with the board of trustees under this section. In its sole discretion, the board of trustees may take the following actions:

   1. (1) modify, refuse to accept, or delete any proposed finding of fact or conclusion of law made by the administrative law judge;
   2. (2) make alternative findings of fact and conclusions of law;
   3. (3) vacate or modify an order issued by the administrative law judge and remand to the administrative law judge, if necessary; and
   4. (4) make a final decision on a contested case.

9. (i) In exercising its discretion, the board of trustees may consider but is not limited to the following grounds for changing a finding of fact or conclusion of law or for making a final decision in a contested case that is contrary to the recommendation of the administrative law judge:

   1. (1) the administrative law judge did not properly apply or interpret applicable law, retirement system rules, written policies provided to the administrative law judge, or prior administrative decisions;
   2. (2) a prior administrative decision on which the administrative law judge relied is incorrect or should be changed;
   3. (3) a technical error in a finding of fact should be changed;
   4. (4) a finding of fact of the administrative law judge is against the weight of the evidence;
   5. (5) a finding or conclusion or other action of the administrative law judge would alter the terms of the plan; or
   6. (6) the change is pursuant to a fiduciary responsibility.
10. (j) An appeal to the board of trustees shall be considered in open meeting to the extent required by law.

Source Note:The provisions of this §43.304 adopted to be effective January 2, 2025, 49 TexReg 10651.