Texas Administrative Code › Title 40 - SOCIAL SERVICES AND ASSISTANCE › Part 19 - DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES › Chapter 705 - ADULT PROTECTIVE SERVICES › Subchapter O - EMPLOYEE MISCONDUCT REGISTRY › Section 705.1527 - How is the EMR conducted?

Current through Reg. 49, No. 28; July 12, 2024
(a)
				  The hearing is similar to a civil court trial, but is less formal. The parties
				  to the hearing are the employee and DFPS.
(b) The hearing is conducted by an
				  administrative law judge who has the duty to provide a fair and impartial
				  hearing and to ensure that the available and relevant testimony and evidence
				  are presented in an orderly manner. The administrative law judge has authority
				  to administer oaths, issue subpoenas, and order discovery.
(c) Prior to the hearing, the employee may
				  request a copy of the investigation record, edited to remove the identity of
				  the reporter and any other confidential information to which the employee is
				  not entitled. The administrative law judge will only issue subpoenas or order
				  additional discovery upon request of a party and a finding of good cause for
				  the issuance or order.
(d) Both
				  parties will be given the opportunity to present their own testimony and
				  evidence, as well as the testimony and evidence of witnesses. Any person who
				  provides testimony at the hearing will be sworn under oath.
(e) Both parties will be given the
				  opportunity to examine the evidence presented by the other party, to
				  cross-examine any witnesses presented by the other party, and to rebut or
				  respond to the evidence presented by the other party.
(f) Testimony of a witness may be presented
				  by written affidavit, but may be given less weight than the credible testimony
				  of a witness who testifies in person, under oath, subject to
				  cross-examination.
(g) Presentation
				  of evidence at the hearing is not restricted under the rules of evidence used
				  in civil cases. The administrative law judge will admit evidence if it is of a
				  type on which a reasonably prudent person commonly relies in the conduct of the
				  person's affairs. Evidence will not be admitted if it is irrelevant,
				  immaterial, unduly repetitious, or precluded by statutory law.
(h) Both parties have the right to be
				  represented at the hearing by a person of their choosing who may be, but is not
				  required to be, an attorney.
(i)
				  The administrative law judge will assist either party in presenting their
				  evidence and testimony, as needed, to ensure that a complete and proper record
				  is developed at the hearing.
(j)
				  The administrative law judge will arrange to have an interpreter available for
				  the hearing if a party or witness requires an interpreter in order to
				  effectively participate in the hearing.
(k) The hearing will be recorded by audio or
				  video tape in order to preserve a record of the hearing. A transcription of the
				  hearing tape will not be made or provided unless an employee seeks judicial
				  review, as provided in this subchapter. The costs of transcribing the testimony
				  and preparing the record for judicial review shall be paid by the party who
				  files for judicial review, unless the party establishes indigence as provided
				  in Rule 20 of the Texas Rules of Appellate Procedure.
(l) The hearing is closed to the general
				  public consistent with the required statutory confidentiality of DFPS records.
				  Only the employee, the employee's representative, and any testifying witnesses
				  may attend the hearing.