1. (a) The administrative law judge has authority analogous to that of a district judge sitting without a jury in a civil case and may make such rulings and issue such orders as may be required to provide a fair, just, expeditious, orderly, and proper hearing. Hearings are open to the public, except that matters made confidential by law must be considered in executive session if requested. If an executive session is not requested before confidential evidence is introduced, the confidentiality of such evidence is considered to have been waived.
2. (b) At the time and place set for hearing, the administrative law judge shall proceed with the hearing as nearly as may be according to the rules of procedure governing the trial of civil cases in the courts of this state. The party with the burden of proof shall present such party's case, followed by other parties in the sequence assigned by the administrative law judge. Each party shall have the opportunity to present such party's case, by calling and examining witnesses, offering documentary evidence, and making legal arguments. Each party shall have the opportunity to contest the admissibility of evidence and cross-examine opposing witnesses on any matter relevant to the issues even if the matter was not covered in direct examination. A party must make an objection to testimony or an evidentiary offer in a timely manner, stating the basis for the objection, or the objection is waived.
3. (c) The burden of proof is on the applicant in a case involving an application and on the agency in a case involving an order to cease and desist or to impose penalties or collect restitution for violations of law.
4. (d) In a hearing on an application, the applicant must prove each of the statutory requirements for approval of the application by a preponderance of the evidence.
5. (e) In a hearing on an action by the agency to enjoin or to impose penalties or collect restitution for violations of law, the agency must prove the violations alleged in the notice of hearing by a preponderance of the evidence. Failure of a respondent to file an answer or to appear at the hearing is not considered to admit the truth of the facts alleged to constitute grounds for a cease and desist or penalty or restitution order so as to excuse the need for other evidence. The hearing will proceed to permit the attorney for the agency to present the evidence in support of the agency case. Failure of the respondent to answer or to appear and contest the agency case may be considered as some evidence supporting an adverse inference that respondent could not defend or rebut the agency case.
6. (f) A party pleading an "affirmative defense" as defined in Texas Rules of Civil Procedure, Rule 94, has the burden to establish it by a preponderance of the evidence.

Source Note:The provisions of this §9.25 adopted to be effective November 13, 1997, 22 TexReg 10951; amended to be effective March 11, 1999, 24 TexReg 1611.