Appeals with respect to entitlement to benefits shall be in accordance with the terms of this rule and of §815.17 of this title (relating to Appeals to the Commission from Decisions on Entitlement to Benefits) and §815.18 of this title (relating to General Rules for Both Appeal Stages). As used in this rule and §815.17 and §815.18, "party" means an individual or organization entitled to receive a copy of the determination made by the examiner under the terms of the Act, §§208.021 and 212.051-212.052.

1. (1) Presentation of appealed claims.

   1. (A) A party appealing from a benefit determination made by an examiner under the terms of the Act, §§208.021 and 212.051-212.052, shall either write directly to the appeal tribunal giving notice of such appeal or sign and file with the commission at its office in Austin, or at a local office or itinerant service point of the commission, a written notice of the appeal, setting forth the basis for the appeal. Such notice of appeal shall identify the determination from which appeal is taken and shall state the date on which the appeal is filed.
   2. (B) Upon the scheduling of a hearing on an appeal, notice of such hearing shall be mailed to the parties at least five days before the date of the hearing. Such notice shall identify the decision or determination appealed from and shall specify the time and place of the hearing, the party appealing, and the primary issue involved.
2. (2) Disqualification of appeal tribunal. No appeals examiner shall participate in the hearing of an appeal in which he has an interest. Challenges to the interest of any appeals examiner may be heard and decided by the supervisor of appeals or, in his discretion, be referred to the commission for decision.

3. (3) Hearing of appeal.

   1. (A) All hearings shall be conducted informally and in such manner as to ascertain the substantial rights of the parties. All issues relevant to the appeal shall be considered and passed upon. The claimant and any other party to an appeal before an appeal tribunal may present such evidence as may be pertinent. When a party appears in person, the appeal tribunal shall examine such party and his witnesses, if any, and may allow such cross-examination as he deems proper. The appeal tribunal, with or without notice to any of the parties, may take such additional evidence as it deems necessary; provided that a party shall be given an opportunity to rebut such evidence if it is to be used against his interest.
   2. (B) The parties to an appeal, with the consent of the appeal tribunal, may stipulate in writing the facts involved. The appeal tribunal may decide the appeal on the basis of such stipulation or, in its discretion, may set the appeal for hearing and take such further evidence as it deems necessary to enable it to determine the appeal.
   3. (C) In appeals in which one or more parties are out of state, in which the parties are at different intrastate locations, in which both parties are at a location infrequently served by itinerant appeals referees, in which the commission is required by Texas Labor Code §301.064, to provide language interpreters, or in which in-person hearings have been determined by the executive director to be impractical because of large volume of appeals and/or limited funding resources, the appeal tribunal may schedule the hearing to be conducted by telephone. The rules and procedures governing hearings in general shall govern telephone hearings.

4. (4) Adjournment, continuance, and postponement of hearing.

   1. (A) The appeal tribunal shall use its best judgment as to when an adjournment of a hearing shall be granted in order to secure all the evidence that is necessary and to be fair to the parties.
   2. (B) A continuance, adjournment, or postponement may be granted at any time, either prior to a hearing or during a hearing. Prior to the hearing, applications for continuance or postponement of a hearing may be made informally, either orally or in writing, at any office or itinerant service point of the commission, for transmission to the supervisor of appeals or to the appeals examiner designated to hear the appeal.

5. (5) Reopening of hearing before appeal tribunal.

   1. (A) If a party to the appeal shall fail to appear at the time and place designated for the hearing, the appeal tribunal may hear and record the evidence of the party present and the witnesses, if any, and shall proceed to decide the appeal on the basis of the record unless there appears to be good reason for continuing the hearing. A copy of the decision shall be promptly mailed to the parties, together with an explanation of the manner in which, and time within which, request for reopening may be submitted.
   2. (B) Any party to the appeal who fails to appear at a hearing may within 14 days from the date the decision is mailed petition for a new hearing before the appeal tribunal. Such petition shall be granted if it appears to the appeal tribunal that the petitioner has shown good cause for his failure to appear at the hearing. In the event that an appeal to the commission is filed before the filing of the petition for rehearing by the appeal tribunal, such appeal shall be referred to the commission for review. For purposes of this subsection, the term "appear" shall mean a personal appearance by party or representative who actually participates in the proceedings. Mere submission of written documents, whether sworn or unsworn, shall not constitute an appearance.

6. (6) The determination of appeals.

   1. (A) Following the conclusion of a hearing of an appeal, the appeal tribunal shall, as early as possible, announce its findings of fact and decision with respect to the appeal. The decision shall be in writing and shall reflect the name of the appeals examiner who conducted the hearing and who rendered the decision. The appeals examiner shall set forth his findings of fact with respect to the matters on appeal, his decision, and the reasons therefor.
   2. (B) Copies of all decisions and the reasons therefor shall be mailed by the appeal tribunal to the parties.
   3. (C) At any time during the 14-day period from the date a decision on an appeal is mailed, the appeal tribunal may assume continuing jurisdiction over the appeal for the purpose of reconsidering the issues on appeal and issuing a corrected decision in regard thereto, if deemed necessary by the appeal tribunal. During the period in which the appeal tribunal so assumes jurisdiction, the appeal tribunal, with or without notice to any of the parties, may take such additional evidence or secure such additional information as it deems necessary; provided that a party shall be given an opportunity to rebut such evidence or information if it is to be used against his interests.

Source Note:The provisions of this §815.16 adopted to be effective July 27, 1982, 7 TexReg 2630; amended to be effective February 10, 1983, 8 TexReg 332; amended to be effective January 7, 1988, 12 TexReg 4917; amended to be effective August 24, 1988, 13 TexReg 3994; amended to be effective August 21, 1991, 16 TexReg 4358; amended to be effective June 11, 1992, 17 TexReg 3913; transferred effective June 1, 1996, as published in the Texas Register June 18, 1996, 21 TexReg 5606; amended to be effective October 6, 1998, 23 TexReg 10049.