Texas Administrative Code › Title 7 - BANKING AND SECURITIES › Part 1 - FINANCE COMMISSION OF TEXAS › Chapter 9 - RULES OF PROCEDURE FOR CONTESTED CASE HEARINGS, APPEALS, AND RULEMAKINGS › Subchapter B - CONTESTED CASE HEARINGS › Section 9.25 - The Hearing

Current through Reg. 49, No. 28; July 12, 2024
(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.
(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.
(c) In
				  a case involving an original application for a license, the burden of proof is
				  on the applicant. In cases involving an order to cease and desist, the
				  imposition of penalties, the collection of restitution for violations of law,
				  or an agency's failure to renew an existing license, the burden of proof is on
				  the agency.
(d) A party pleading an
				  "affirmative defense" as defined in Texas Rules of Civil Procedure, Rule 94,
				  has the burden to prove that defense.
(e) The assertion that an applicant for an
				  original or renewal license qualifies for the license under Chapter 53 of the
				  Occupations Code (related to the collateral consequences of a criminal
				  conviction) is an affirmative defense. The applicant for the original or
				  renewal license has the burden to prove the satisfaction of the conditions on
				  which the applicant would be entitled to the license under the Occupations
				  Code. The existence of mitigating circumstances related to a criminal
				  conviction is an affirmative defense. The applicant for an original or renewal
				  license has the burden to prove the existence of such mitigating
				  circumstances.
(f) Unless otherwise
				  provided by statute, the burden of proof shall be by a preponderance of the
				  evidence.
(g) If an applicant for
				  an original license application fails to appear at a scheduled hearing and the
				  agency can prove proper service of notice of the hearing, the administrative
				  law judge may deny the application based on the applicant's failure to carry
				  its burden of proof. If the respondent fails to appear at a hearing in which
				  the agency has the burden of proof, the agency attorney must prove actual or
				  constructive service of a notice of hearing and must present evidence
				  sufficient to prove the agency's case. Failure of the respondent to answer or
				  to appear and contest the agency's case may be considered as some evidence
				  supporting an adverse inference that respondent could not defend or rebut the
				  agency's case.