Texas Administrative Code › Title 22 - EXAMINING BOARDS › Part 11 - TEXAS BOARD OF NURSING › Chapter 213 - PRACTICE AND PROCEDURE › Section 213.22 - Formal Proceedings

Current through Reg. 49, No. 28; July 12, 2024
(a) Formal
				administrative hearings in contested cases shall be conducted in accordance
				with the APA and SOAH rules. Jurisdiction over the case is acquired by SOAH
				when the staff or respondent files a Request to Docket Case Form accompanied by
				legible copies of all pertinent documents, including but not limited to the
				complaint, petition, application, or other document describing the agency
				action giving rise to a contested case.
(b) When a case has been docketed before
				SOAH, Board staff or respondent shall provide a notice of hearing to all
				parties in accordance with §
									2001.052,
				Texas Government Code, and applicable SOAH rules.
(c) In disciplinary cases, the respondent
				shall enter an appearance by filing a written answer or other responsive
				pleading with SOAH, with a copy to staff, within 20 days of the date on which
				the notice of hearing is served to the respondent.
(d) For purposes of this section, an entry of
				an appearance shall mean the filing of a written answer or other responsive
				pleading.
(e) The failure of the
				respondent to timely enter an appearance as provided in this section shall
				entitle the staff to a continuance at the time of the hearing in the contested
				case for such reasonable period of time as determined by the judge.
(f) The notice of hearing provided to a
				respondent for a contested case shall include the following language in capital
				letters in 12-point bold face type: FAILURE TO ENTER AN APPEARANCE BY FILING A
				WRITTEN ANSWER OR OTHER RESPONSIVE PLEADING TO THE FORMAL CHARGES WITHIN 20
				DAYS OF THE DATE THIS NOTICE WAS MAILED, SHALL ENTITLE THE STAFF TO A
				CONTINUANCE AT THE TIME OF THE HEARING.
(g) If a respondent fails to appear in person
				or by attorney on the day and at the time set for hearing in a contested case,
				regardless of whether an appearance has been entered, the judge, pursuant to
				SOAH's rules, shall, upon adequate proof that proper notice under the APA and
				SOAH rules was served upon the defaulting party, enter a default judgment in
				the matter adverse to the respondent. Such notice shall have included in
				12-point, bold faced type, the fact that upon failure of the party to appear at
				the hearing, the factual allegations in the notice will be deemed admitted as
				true and the relief sought in the proposed recommendation by the staff shall be
				granted by default.
(h) Any default
				judgment granted under this section will be entered on the basis of the factual
				allegations in the formal charges contained in the notice of hearing, 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 §§
									2001.051,
				2001.052 and
				2001.054, as well as
				§
									213.10 of this
				title (relating to Notice and Service). Such notice of hearing also shall
				include the following language in capital letters in 12-point boldface type:
				FAILURE TO APPEAR AT THE HEARING IN PERSON OR BY LEGAL REPRESENTATIVE,
				REGARDLESS OF WHETHER AN APPEARANCE HAS BEEN ENTERED, WILL RESULT IN THE
				ALLEGATIONS CONTAINED IN THE FORMAL CHARGES BEING ADMITTED AS TRUE AND THE
				PROPOSED RECOMMENDATION OF STAFF SHALL BE GRANTED BY DEFAULT.
(i) A motion to vacate a default judgment
				rendered by the judge must be filed within 10 days of service of notice of the
				default judgment.
(1) The motion to vacate
				the default judgment shall be granted if movant proves by the preponderance of
				the evidence that the failure to attend the hearing was not intentional or the
				result of conscious indifference, but due to accident or mistake, provided that
				respondent has a meritorious defense to the factual allegations contained in
				the formal charges and the granting thereof will occasion no delay or otherwise
				work an injury to the Board.
(2) If
				the motion to vacate the default judgment is granted, it shall be the
				responsibility of the parties to either settle the matter informally or to
				request a rehearing on the merits. Whenever possible, the rehearing of the case
				shall occur with the judge that heard the default matter.