TITLE 1. ADMINISTRATION

PART 7. STATE OFFICE OF ADMINISTRATIVE HEARINGS

CHAPTER 159. RULES OF PROCEDURE FOR ADMINISTRATIVE LICENSE SUSPENSION HEARINGS

The State Office of Administrative Hearings (SOAH) adopts amendments and a new rule in 1 TAC, Part 7, Chapter 159, concerning Rules of Procedure for Administrative License Suspension Hearings, consisting of Subchapter A, §§159.3, 159.5, and 159.7; Subchapter B, §159.51; Subchapter C, §§159.101, 159.103, 159.105; Subchapter D, §159.151; and Subchapter E, §159.213.

Sections 159.103, 159.105, and 159.151 are adopted with changes to the proposed text as published in the June 17, 2016, issue of the Texas Register (41 TexReg 4367) and will be republished. All changes have been made in response to comments.

Sections 159.3, 159.5, 159.7, 159.51, 159.101, and 159.213 are adopted without changes to the proposed text as published in the June 17, 2016, issue of the Texas Register (41 TexReg 4367) and will not be republished.

The adopted amendments and new rule provide clearer, more uniform, and better organized procedures for participants in administrative license revocation proceedings at SOAH.

SOAH received comments concerning the proposed amendments and new rule during the comment period of June 17, 2016, through July 17, 2016, from the Texas Department of Safety (DPS) and attorney Lawrence Boyd, on behalf of the Texas Criminal Defense Lawyers Association (TCDLA). At the request of TDCLA, SOAH conducted a public hearing on the proposed amendments and new rule on October 7, 2016. TCDLA and DPS provided comments at the public hearing.

SOAH received no comments concerning 1 TAC §§159.3 - 159.5.

1 TAC §159.7

Comment: One commenter questioned making only some sections of the rules in 1 TAC 155 specifically applicable to administrative licenses revocation hearings.

Response: Not all procedures in Ch. 155 are applicable in administrative license revocation hearings. SOAH has referenced those procedures in Chapter 155 that apply to hearings conducted under the rules in Chapter 159.

1 TAC §159.51

The only commenter said the rule appeared to be fair.

1 TAC §159.101

Comment: Section §159.101(b) provides for attorney-issued subpoenas for peace officers. One commenter said SOAH should require a party to show good cause as a predicate for issuance of a subpoena, as required by Texas Government Code §2001.089. The commenter noted that SOAH’s rules require a showing of good cause before a subpoena is issued to compel a breath test operator or a breath test technical supervisor to attend the hearing and said subpoenas for all witnesses should have the same procedures.

Response: Texas Transportation Code §524.039 requires SOAH to issue a subpoena for the breath test operator or certified breath test technical supervisor upon a showing of good cause. The Transportation Code has no similar requirement for certified peace officers. Therefore, the issues pertaining to issuing subpoenas for peace officers are distinct. Attorneys have been allowed to issue subpoenas for peace officers since December 10, 2014, and the current proposed rule makes no change to that process.

1 TAC §159.103

Comment: A commenter noticed that the proposed amendment deletes the current reference to the Texas Rules of Civil Procedure and, instead, outlines methods for serving subpoenas. The commenter asked whether the amendment was proposed only because subpoena fees are tendered at the hearing, rather than when the subpoena is served, as provided in the Texas Rules of Civil Procedure.

Response: The commenter is correct. SOAH made the change only because of different practices in how the fees are paid to the subpoenaed witnesses.

Comment: 1 TAC §159.103 (d) - (e) require certification to SOAH that witness fees have been paid. The commenter asked that the proposed rules be changed to require that a copy of the certification be sent to the opposing party.

Response: SOAH agrees with this comment and has changed the proposed rule accordingly.

1 TAC §159.103(g)(4)

Comment: One commenter asked SOAH to provide the same sanction for the failure to file the return of service for a subpoena as the sanction included for failure to file a subpoena.

Response: SOAH agrees with this suggestion and has changed the proposed rule.

1 TAC §159.103(h)

Comment: A commenter observed that the proposed rule requires a party to give notice of the new hearing date to a witness when a hearing is continued, but it does not require the party to give notice to the opposing party when the notice to the witness is served. The commenter asked that the rule include a requirement to notify the opposing party when notice is given to a witness of a new hearing date.

Response: SOAH agrees with this suggestion that a copy of the notice to the witness should be provided to the opposing party and has changed the proposed rule.

Comment: A commenter asks that the rule designate who is responsible for notifying a witness of a new hearing date when SOAH continues a hearing on the judge's own motion.

Response: SOAH thinks the better practice is to allow judges to retain flexibility over their cases so that the appropriate party in each case can be made responsible for notifying witnesses of a new hearing date. Therefore, SOAH does not agree with this comment.

1 TAC §159.105

Comment: A commenter asks that the rule retain a former provision that stated: "If a subpoena request is denied or if a subpoena is quashed, any witness fee or mileage reimbursement fee that has been tendered to a witness or filed with SOAH shall be returned to the party who tendered the fees."

Response: The former requirement was removed because the practice of handling subpoenas has changed. Parties who subpoena a witness now tender the witness fee when the witness appears for the hearing. Typically, a subpoena request is denied or a subpoena is quashed prior to the hearing, so the witness is not required to appear. However, a provision has been added for those instances when a subpoena is quashed after a witness has appeared for the hearing.

1 TAC §159.151

Comment: The prior rule included a requirement that, "Upon a showing of harm by the defendant, and upon a showing of a proper request for discovery, no document in the ALR Division’s actual possession will be admissible unless it was provided to the defendant within five business days of the receipt of the request for production." A commenter said the rule should retain this requirement so that the ALR Division will timely respond to discovery.

Response: SOAH believes the deadline for providing discovery is an adequate reason for the parties to timely respond to discovery requests. In addition, judges retain discretion concerning what sanction or action is appropriate when a party fails to provide documents during discovery.

Comment: A commenter asks SOAH to retain the provision for a mandatory continuance when discovery is not furnished ten days before the hearing. Otherwise, the commenter stated, the opposing party will have no incentive to timely respond to discovery requests, and the discovery process will be undermined.

Response: SOAH believes that judges should have flexibility and discretion both to assure that discovery is provided timely and to efficiently manage hearings. Even when discovery is provided fewer than ten days before a hearing, there may be cases when a hearing should proceed, such as when a party has gained access to relevant documents in a timely manner through another source, or when witnesses are already present for the hearing. In addition, judges retain discretion concerning what sanction or action is appropriate when documents are not provided timely in response to discovery requests.

Comment: A commenter states that the party who requested discovery should not be charged with a continuance request when discovery is not provided timely.

Response: SOAH has changed the proposed rule to allow either party to request a continuance.

Comment: A commenter asks that the exception referenced in (g) be expanded to include not only subsection (j) but also subsections (i) and (h), asserting that they, too, are exceptions to the duty to respond to discovery within five days of a request.

Response: Subsection (h) already requires a party to respond within five days and to supplement within five days after additional discoverable documents are received by the responding party. Subsection (i) allows the judge to grant a continuance when discovery is received by the requesting party fewer than ten days before the scheduled hearing. SOAH does not consider this to be an exception to the duty to respond to discovery within five days and makes no changes in response to the comment.

Comment: One commenter agreed with the change to §159.151(g) but asked that the words "must" be changed to "shall."

Response: In light of the directory nature of the proposed rule, SOAH agrees with the comment and has made that change.

Comment: Proposed §159.151(i) permits a party to request a continuance based on recently received discovery. One commenter notes that the proposed rule is silent as to what remedies are available to a party who chooses not to request a continuance, or when a continuance has already been granted for recently received discovery, but additional discovery is provided under §159.151(h). The commenter also asked that the new rule require the party who requested discovery to demonstrate that the discovery request was properly made.

Response: Because discovery issues can arise based on a number of different possibilities, the rule addresses only the most common situations. Judges retain discretion to make appropriate rulings based upon different circumstances.

1 TAC §159.213

SOAH received no comments concerning this proposed rule.

SUBCHAPTER A. GENERAL

1 TAC §§159.3, 159.5, 159.7

The amendments are adopted under Government Code, Chapter 2003, §2003.050, which requires SOAH to adopt procedural rules that relate to the hearings it conducts, and Government Code Chapter 2001, §2001.004, which requires agencies to adopt rules of practice setting forth the nature and requirements of formal and informal procedures.

The adopted rules affect Government Code, Chapters 2001 and 2003; Transportation Code, Chapters 522, 524, and 724; and Penal Code, Chapter 49.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on November 18, 2016.

TRD-201605920

Cynthia Reyna

General Counsel

State Office of Administrative Hearings

Effective date: January 1, 2017

Proposal publication date: June 17, 2016

For further information, please call: (512) 475-1276


SUBCHAPTER B. REPRESENTATION

1 TAC §159.51

The amendments are adopted under Government Code, Chapter 2003, §2003.050, which requires SOAH to adopt procedural rules that relate to the hearings it conducts, and Government Code Chapter 2001, §2001.004, which requires agencies to adopt rules of practice setting forth the nature and requirements of formal and informal procedures.

The adopted rules affect Government Code, Chapters 2001 and 2003; Transportation Code, Chapters 522, 524, and 724; and Penal Code, Chapter 49.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on November 18, 2016.

TRD-201605925

Cynthia Reyna

General Counsel

State Office of Administrative Hearings

Effective date: January 1, 2017

Proposal publication date: June 17, 2016

For further information, please call: (512) 475-1276


SUBCHAPTER C. WITNESSES AND SUBPOENAS

1 TAC §§159.101, 159.103, 159.105

The amendments and new rule are adopted under Government Code, Chapter 2003, §2003.050, which requires SOAH to adopt procedural rules that relate to the hearings it conducts, and Government Code Chapter 2001, §2001.004, which requires agencies to adopt rules of practice setting forth the nature and requirements of formal and informal procedures.

The adopted rules affect Government Code, Chapters 2001 and 2003; Transportation Code, Chapters 522, 524, and 724; and Penal Code, Chapter 49.

§159.103.Issuance and Service of Subpoenas.

(a) A party that issues or is granted a subpoena shall be responsible for having the subpoena served. The subpoena may be served at any place within the State of Texas by any sheriff or constable of the State of Texas, or any person who is not a party to the case and is 18 years of age or older. A subpoena must be served by delivering a copy to the witness. If the witness is a party and is represented by an attorney of record in the proceeding, the subpoena may be served on the witness’s attorney. A subpoena may also be served by accepted alternative methods established by a peace officer’s law enforcement agency.

(b) A subpoena must be served at least five days before the hearing.

(c) After a subpoena is served upon a witness, the return of service of the subpoena must be filed at SOAH at least three days prior to the hearing. Upon the subpoenaed witness’s appearance at the hearing, the party that issued the subpoena shall tender a witness fee check or money order in the amount of $10 to the witness. In addition, if the witness traveled more than 25 miles round-trip to the hearing from the witness’s office or residence, mileage reimbursement must also be tendered at the same time. The amount of mileage reimbursement will be that listed in the state mileage guide at https://fmx.cpa.state.tx.us/fm/travel/travelrates.php.

(d) If the hearing is conducted telephonically, the party that issued the subpoena shall mail the witness fee check or money order to the witness within one day of the conclusion of the hearing unless the witness fails to appear at the hearing. Also within one day of the conclusion of the hearing, the party shall forward to SOAH a certification that the witness fee or money order was mailed to the witness. A copy of the certification must be sent to the opposing party at the time it is filed at SOAH.

(e) If a party that served a subpoena on a witness fails to appear at a hearing, that party shall mail the witness fee check or money order to the witness within one day from receipt of a default decision or any other order issued by the judge ordering payment of the fee and mileage reimbursement. Also within one day from receipt of the judge’s order, the party shall forward to SOAH a certification that the witness fee or money order was mailed to the witness. A copy of the certification must be sent to the opposing party at the time it is filed at SOAH.

(f) If special equipment will be required in order to offer subpoenaed documents or tangible things, the party seeking their admission shall be required to supply the necessary equipment. The party requesting a subpoena duces tecum may be required to advance the reasonable costs of reproducing the documents or tangible things requested.

(g) Service upon opposing party.

(1) A party that issues a subpoena must serve the opposing party with a copy of the subpoena on the same date it is issued.

(2) A party that requests a subpoena from a SOAH judge must serve the opposing party with a copy of the request at the time it is filed with SOAH.

(3) When a subpoena has been served, and not less than three days prior to the hearing, a party that has served a subpoena must provide the opposing party with a copy of the return of service.

(4) If a party fails to serve a copy of a subpoena or a subpoena return on the opposing party, the subpoena may be rendered unenforceable by the judge.

(h) Continuing effect. A properly issued subpoena remains in effect until the judge releases the witness or grants a motion to quash or for protective order. If a hearing is rescheduled and a subpoena is extended, and unless the judge specifically directs otherwise, the party that requested the continuance shall promptly notify any subpoenaed witnesses of the new hearing date and serve a copy of the notice on the opposing party.

§159.105.Motions to Quash or for Protective Order.

(a) On behalf of a subpoenaed witness, a party may move to quash a subpoena or for a protective order. A party that moves to quash a subpoena must serve the motion on the other party at the time the motion is filed with SOAH.

(b) A party may seek an order from the judge at any time after the motion to quash or motion for protective order has been filed.

(c) In ruling on motions to quash or for protection, the judge must provide a person served with a subpoena an adequate time for compliance, protection from disclosure of privileged material or information, and protection from undue burden or expense. The judge also may impose reasonable conditions on compliance with a subpoena.

(d) If a subpoena request is denied or if a subpoena is quashed, any witness fee or mileage reimbursement fee that has been tendered to a witness shall be returned to the party that tendered the fees except that, if a subpoena is quashed after a witness has already appeared for a hearing, the party that subpoenaed the witness must tender the witness fee check to the witness.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on November 18, 2016.

TRD-201605928

Cynthia Reyna

General Counsel

State Office of Administrative Hearings

Effective date: January 1, 2017

Proposal publication date: June 17, 2016

For further information, please call: (512) 475-1276


SUBCHAPTER D. DISCOVERY

1 TAC §159.151

The amendments are adopted under Government Code, Chapter 2003, §2003.050, which requires SOAH to adopt procedural rules that relate to the hearings it conducts, and Government Code Chapter 2001, §2001.004, which requires agencies to adopt rules of practice setting forth the nature and requirements of formal and informal procedures.

The adopted rules affect Government Code, Chapters 2001 and 2003; Transportation Code, Chapters 522, 524, and 724; and Penal Code, Chapter 49.

§159.151.Prehearing Discovery.

(a) A request for discovery may not be filed before the request for hearing has been received by the Department.

(b) No party shall file copies of discovery requests with SOAH.

(c) Depositions, interrogatories, and requests for admission shall not be permitted in ALR proceedings.

(d) Both parties have the right to review, inspect, and obtain copies of any non-privileged documents or records in the other party's possession.

(e) A request for discovery must be on a separate document from other pleadings and notices and clearly labeled as a request for discovery.

(f) A defendant's request for discovery from DPS's ALR Division shall be served in the manner specified in 37 Texas Administrative Code §17.16 (relating to Service on the Department of Certain Items Required to be Served on, Mailed to, or Filed with the Department). DPS's request shall be served on Defendant at the address of record.

(g) Except as provided in subsection (j) of this section, responses to discovery shall be sent to the requesting parties within five days after receipt of the request.

(h) If a party does not have any or all of the documents in its actual possession, it shall respond within five days of the request, stating that it does not have the documents in its actual possession. A party must supplement all its discovery responses within five days from the time the party receives the discoverable documents.

(i) If a document sought through discovery is received by the requesting party fewer than ten days before the scheduled hearing, the judge may grant a continuance on the request of either party. The judge may grant only one continuance based on recently obtained discovery.

(j) A defendant may request inspection, maintenance and/or repair records for the instrument used to test the defendant's breath specimen for the period covering 30 days prior to the test date and 30 days following the test date. If the records are in the actual possession of DPS, DPS shall supply the records to the defendant within ten days of receipt of the request. If DPS fails to provide properly requested records after the defendant has paid reasonable copying charges for them, evidence of the breath specimen shall not be admitted into evidence.

(k) A party that seeks relevant, probative records from a third party may request issuance of a subpoena duces tecum pursuant to Subchapter C (relating to Witnesses and Subpoenas) to have the evidence produced at the hearing. If a person subpoenaed under this section does not appear, the judge may grant a continuance to allow for enforcement of the subpoena.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on November 18, 2016.

TRD-201605932

Cynthia Reyna

General Counsel

State Office of Administrative Hearings

Effective date: January 1, 2017

Proposal publication date: June 17, 2016

For further information, please call: (512) 475-1276


SUBCHAPTER E. HEARING AND PREHEARING

1 TAC §159.213

The amendments are adopted under Government Code, Chapter 2003, §2003.050, which requires SOAH to adopt procedural rules that relate to the hearings it conducts, and Government Code Chapter 2001, §2001.004, which requires agencies to adopt rules of practice setting forth the nature and requirements of formal and informal procedures.

The adopted rules affect Government Code, Chapters 2001 and 2003; Transportation Code, Chapters 522, 524, and 724; and Penal Code, Chapter 49.

The agency certifies that legal counsel has reviewed the adoption and found it to be a valid exercise of the agency's legal authority.

Filed with the Office of the Secretary of State on November 18, 2016.

TRD-201605935

Cynthia Reyna

General Counsel

State Office of Administrative Hearings

Effective date: January 1, 2017

Proposal publication date: June 17, 2016

For further information, please call: (512) 475-1276