Texas Administrative Code › Title 34 - PUBLIC FINANCE › Part 1 - COMPTROLLER OF PUBLIC ACCOUNTS › Chapter 3 - TAX ADMINISTRATION › Subchapter O - STATE AND LOCAL SALES AND USE TAXES › Section 3.361 - Practice and Procedure for Texas Customs Broker's License Denial, Suspension, and Revocation

Current through Reg. 49, No. 28; July 12, 2024
(a) Applicability
				  of rules of practice and procedure. The following rules of practice and
				  procedure contained in Part I, Chapter 1, Subchapter A of this title (relating
				  to Practice and Procedure) shall apply to hearings involving the denial,
				  revocation, or suspension of a Texas Customs Broker's License: §§1.1,
				  1.2, 1.4, 1.8, 1.19, 1.21-1.27, 1.29-1.36, 1.38, 1.41, and 1.42 of this title
				  (relating to Practice and Procedure). For information about licensing
				  procedures and requirements, see §
										3.360
				  of this title (relating to Customs Brokers).
(b) Special rules governing hearings on the
				  denial, revocation, or suspension of a Texas Customs Broker's License.
(1) Contested cases. A contested case is a
				  proceeding in which the legal rights, duties, or privileges of an applicant or
				  licensee are to be determined by the agency after an opportunity for
				  adjudicative hearing. It includes a request for relief from actions initiated
				  by the agency to deny, suspend, or revoke a Texas Customs Broker's License.
				  Contested cases are within the jurisdiction of the administrative law
				  judges.
(2) Initiation of an oral
				  hearing.
(A) If the comptroller determines
				  that an applicant is not eligible for a Texas Customs Broker's License, the
				  applicant will be notified, in writing, by personal service, or by registered
				  or certified mail, return receipt requested, that the application has been
				  denied. The notice will state the reasons for the denial. The applicant may,
				  within 15 days of the date of the notice of denial, make a written request for
				  an oral hearing to contest the denial. If the applicant does not request a
				  hearing within 15 days of the date of the notice of denial, the hearing is
				  waived and a final decision will be issued.
(B) If the comptroller determines that a
				  Texas Customs Broker's License should be suspended or revoked, the comptroller
				  will notify the licensee, in writing, by personal service or by registered or
				  certified mail, return receipt requested, that the license will be suspended or
				  revoked and will state the reasons for the action. The licensee may, within 15
				  days of the date of the notice of suspension or revocation, make a written
				  request for an oral hearing to contest the action. If the licensee does not
				  request a hearing within 15 days of the date of the notice of suspension or
				  revocation, the hearing is waived and a final decision will be
				  issued.
(3) Content of
				  request for an oral hearing.
(A) A request
				  for an oral hearing must contain the reasons the applicant or licensee
				  disagrees with the action of the agency. The applicant or licensee must list
				  and number the factual and legal grounds why the action of the agency should be
				  reversed. Legal authority must be cited if the applicant or licensee disagrees
				  with the agency's interpretation of the law.
(B) Evidence regarding issues raised in the
				  request for hearing may be obtained through:
(i) a preliminary conference; and
(ii) discovery.
(C) Time limits on discovery or preliminary
				  conferences will be set by the assigned administrative law judge if the parties
				  cannot reach agreement. Evidence that a licensee or applicant will rely upon
				  must be submitted to the assigned administrative law judge and hearings
				  attorney at least ten days prior to the hearing date.
(D) A request for hearing may be amended up
				  to ten days prior to the time that the hearing date is set, and not later,
				  unless by permission of the assigned administrative law judge, and unless all
				  evidence upon which the applicant or licensee intends to rely and that was not
				  previously filed is filed with the amended request for hearing.
(4) Extensions of time.
(A) A motion for extension of the due date
				  for submitting a request for hearing on the denial of an application or on the
				  proposed suspension or revocation of a license may be granted in case of
				  emergency or extraordinary circumstances. A motion for extension will not be
				  routinely granted and each request will be closely scrutinized to ensure that
				  the applicant or licensee has made every effort to comply with the original
				  deadline. A motion filed after the expiration of the original due date will not
				  be considered. A motion must be directed to the chief administrative law judge
				  or his designee, who will grant or deny the motion.
(B) A motion for an extension of any other
				  deadline will not be granted unless good cause is established and the need for
				  the extension is not due to the moving party's neglect, indifference, or lack
				  of diligence. A motion must be made in writing at least seven days prior to the
				  deadline. In the event of an emergency, a motion may be accepted if it is
				  postmarked, sent by facsimile transmission, or deposited with a private mail or
				  courier service, postage or delivery charges paid, not later than the date of
				  the original deadline.
(5) Motion to dismiss; request for extended
				  hearing.
(A) The agency may move to dismiss
				  the hearing on the ground that the request for hearing was not timely filed or
				  failed to state a claim upon which relief could be granted as required by
				  paragraph (3) of this subsection.
(B) An applicant or licensee who believes it
				  will require more than two hours for a hearing must file a written request for
				  an extended hearing at the time the request for hearing is filed, and state the
				  reasons why more time will be required; however, any party may later request an
				  extended hearing for good cause shown.
(6) Notice of setting. Upon receipt of a
				  timely and sufficient request for hearing, the assigned administrative law
				  judge will send a notice to the parties giving:
(A) the date, time, place, and nature of the
				  oral hearing;
(B) the legal
				  authority and jurisdiction under which the hearing is to be held;
(C) a reference to the particular statutes
				  and rules involved; and
(D) upon
				  request, briefing and evidentiary prefiling dates, and other appropriate
				  orders.
(7)
				  Administrative law judge to hear case. Hearings will be conducted by an
				  assigned administrative law judge who has authority to examine witnesses, to
				  rule on motions, and to rule upon the admissibility of evidence. The
				  administrative law judge has the authority to continue or recess any hearing,
				  to control the record, and to propose decisions to the comptroller. If for any
				  reason the assigned administrative law judge cannot continue on a contested
				  case, another administrative law judge will become familiar with the record and
				  perform any functions remaining to be performed without the necessity of
				  repeating any previous proceedings in the case.
(8) Filing of documents. All documents
				  submitted after the notice of setting has been issued must be filed with the
				  assigned administrative law judge with a copy to each party. In addition to any
				  other order by the assigned administrative law judge, the time limit for filing
				  documents with the administrative law judge and an opposing party shall be not
				  later than ten days prior to the hearing.
(9) Continuances (postponement of hearing). A
				  motion for continuance of a contested case set for oral hearing must be in
				  writing and filed with the assigned administrative law judge at least seven
				  days prior to the date that the matter is to be heard. If an emergency occurs
				  less than seven days prior to the hearing date, a motion for continuance may be
				  filed. The motion must show that there is good cause for the continuance and
				  that the need is not caused by neglect, indifference, or lack of diligence. A
				  copy of the motion must be served upon all other parties of record at the time
				  of filing.
(10) Comptroller's
				  decision. The proposed decision of the assigned administrative law judge must
				  be approved by the Comptroller of Public Accounts before it is given effect.
				  The comptroller's decision will be sent to the applicant or licensee and any
				  authorized representative. The decision is final 20 days from the date mailed,
				  unless a motion for rehearing is filed at or before midnight of the 20th day.
				  If the motion for rehearing is granted, the decision is vacated pending a
				  subsequent decision upon rehearing. If the motion for rehearing is overruled,
				  whether by order or operation of law, the decision is final on the date the
				  motion is overruled. A final decision of the comptroller to deny, suspend, or
				  revoke a Texas Customs Broker's License is subject to judicial review by trial
				  de novo in the district courts of Travis County.
(11) Joint hearings. An applicant, licensee,
				  or the agency may file a written motion to have two or more cases involving
				  only that applicant or licensee joined for purposes of hearing; or the assigned
				  administrative law judge, acting independently, may join two or more such
				  cases.
(12) Dismissal of case.
(A) If a motion to dismiss is filed upon
				  agreement between the applicant or licensee and the agency, or upon the
				  applicant's or licensee's decision to abandon the case, a decision will be
				  issued that conforms with such disposition.
(B) The agency may move to dismiss a case
				  based upon agreement reached between the applicant or licensee and the agency,
				  for failure to state a claim upon which relief can be granted as required by
				  paragraph (3) of this subsection, or for want of prosecution. The motion must
				  be served on the applicant or licensee and its authorized representative at its
				  last address of record. If there is no reply from the applicant or licensee to
				  the agency's motion to dismiss within 15 days, a decision will be issued
				  denying the relief sought by the applicant or licensee.
(C) All motions to dismiss that are based
				  upon a representation that both parties have agreed to dismiss a contested case
				  on the basis that all issues have been settled shall be in writing and signed
				  by both parties or their authorized representatives.
(13) Burden of proof. In all contested cases
				  the agency has the burden of proving a prima facie case; the burden of proof
				  then shifts to the applicant or licensee, with the standard of proof being by a
				  preponderance of the evidence.