Section 159.213 - Failure to Attend Hearing and Default(a) If a party fails to appear for the hearing, the judge, on his or her own motion or on request of the opposing party, may proceed in that party's absence on a default basis.(b) For a telephone or videoconference hearing, the following may be considered a failure to appear and grounds for default, if the conditions exist for more than fifteen minutes after the scheduled time for hearing:(1) failure to attend the telephone conference call or videoconference at the scheduled time; or(2) failure to exercise due diligence to address a technical difficulty with attending a videoconference by contacting the SOAH Chief Clerk's Office for assistance or by utilizing the option to access the hearing audio by telephone.(c) A default under this section must be supported by adequate proof that the notice of hearing was properly filed and served in accordance with §159.53 of this title (relating to Filing Documents) and §159.55 of this title (relating to Service of Documents on Parties).(1) A rebuttable presumption that proper notice was given to a defendant is established by evidence that the notice of hearing was electronically served to the defendant, or if defendant has legal representation, to defense counsel, at the email address provided under §159.53 and §159.55 of this title, or at the email address as reflected on defendant's request for hearing. Alternatively, the judge may consider evidence that the notice of hearing was timely provided to defendant or if defendant has legal representation, to defense counsel, at the mailing address reflected on defendant's notice of suspension, driving record, or similar documentation presented by DPS.(2) A rebuttable presumption that proper notice was given to DPS is established by evidence that information regarding the date, time, and location or method of appearance was electronically transmitted to the Department by the SOAH Chief Clerk's Office or issued by the judge to the DPS attorney of record at the email address(es) reflected in eFile Texas. Alternatively, the judge may consider evidence that notice of the scheduled hearing was published on SOAH's website and/or available to DPS through re:SearchTX.(d) Defendant's Failure to Appear. A Defendant who requests a hearing and fails to appear without good cause waives the right to a hearing on the merits, and the judge will issue a decision and order authorizing the Department to suspend the Defendant's driver's license.(e) Department's Failure to Appear. If the Department fails to appear through its attorney without good cause, the judge will issue an order dismissing the case without suspension or disqualification. A case dismissed under this subsection is dismissed with prejudice and may not be refiled.(f) Within ten business days after the issuance of a default decision and order, the defaulting party may file a written motion with SOAH requesting that the default order be vacated because the party had good cause for failing to appear. In the motion, the party must state the grounds for their failure to appear and whether the motion is opposed. Regardless of whether the motion is opposed, the judge may rule on the motion without setting a hearing or may set a hearing to consider the motion. A hearing on a motion to vacate a default order may be held by videoconference or telephone conference call. If the judge finds good cause for the party's failure to appear, the judge shall vacate the default order and reset the case for a hearing.1 Tex. Admin. Code § 159.213
The provisions of this §159.213 adopted to be effective January 20, 2009, 34 TexReg 334; Amended by Texas Register, Volume 39, Number 46, November 14, 2014, TexReg 8958, eff. 11/19/2014; Amended by Texas Register, Volume 41, Number 49, December 2, 2016, TexReg 9462, eff. 1/1/2017; Amended by Texas Register, Volume 49, Number 31, August 2, 2024, TexReg 5764, eff. 8/4/2024