Section 1.25 - Contested Cases Brought by the Enforcement Section(a) Commencement of a contested case. (1) Enforcement contested cases are commenced when a division of the Commission refers the matter to the Enforcement Section of the Office of General Counsel and the Enforcement Section assigns a docket number to the case. Before filing a complaint, the Commission may offer to settle the case through an agreed order.(2) If the Commission does not offer to settle, or the terms of the offer are not timely met by the respondent, the Commission will send the original complaint to the respondent by certified and regular first-class mail. In cases against foreign or non-resident respondents, the complaint will also be sent to the resident agent listed on the respondent's most recently filed Organization Report (Form P-5). The complaint will be accompanied by a letter alleging that the respondent has violated Commission rules or statutes as set forth in the original complaint; that the respondent may, within 30 days of the date of service, file an answer or request a hearing to contest the allegations of the original complaint; and that the respondent may wish to hire an attorney or other authorized representative or choose to appear on its own behalf. The letter will notify the respondent that if, on 31st day after the date of service, it has not entered into an agreed order, filed an answer to the original complaint, or requested a hearing, a default final order may thereafter be issued against respondent without further notice. Concurrent with the complaint, the Commission may make an offer to settle the case through an agreed order.(3) When there is actual pollution or injury to the public health and safety, or an imminent threat thereof, a hearing may be set and notice of the hearing sent with the original complaint. The notice will state that if the respondent fails to appear at the hearing, a default final order may be issued against respondent without further notice as specified in subsection (d) of this section.(b) Filing of answer or request for hearing; setting of hearing. A request for hearing made by the respondent shall serve as a general denial of the allegations in the original complaint. An answer or request for hearing is timely if filed with the Docket Services Section before the matter is included on an open meeting agenda of the Commission that has been posted with the Secretary of State. Except in cases brought under subsection (a)(3) of this section, the Enforcement Section will coordinate with the Docket Services Section to set a hearing on a date at least 30 days after receipt of a timely answer or hearing request, unless the case is disposed of by other means.(c) Notice of hearing. Notices of hearing will be sent along with the original complaint to respondents or their authorized representatives in all cases brought under subsection (a)(3) of this section. In all other cases, notices of hearing will be sent, along with a current Enforcement Section pleading, only after the respondent or its authorized representative has timely filed a request for hearing or an answer. The notice will be sent to the address from which the request or answer was received, and will state that if the respondent fails to appear at the hearing, a default final order may be issued against respondent without further notice as specified in subsection (d) of this section.(d) Default order upon failure to answer, request hearing, or appear at hearing. (1) If the respondent fails to timely answer the original complaint, request a hearing, or appear at a scheduled hearing, a default final order may be issued by the Commission without further notice.(2) Default final orders will contain findings of fact and conclusions of law sufficient to support the relief ordered.(3) No default final order shall be issued until the Commission has access to the proof of service of the original complaint or the notice of hearing, or the returned certified mail containing the complaint or the notice, has been on file with the Commission for 15 days, exclusive of the day of receipt and day of issuance. Default final orders need not be individually signed in each case by the Commissioners if the case is listed by docket number and summarized on a Master Default Order.(e) Non-applicability of this section to emergency situations. The existing power of the Commission to remedy and seek reimbursement for remediation of any condition which threatens the public health and safety, or to order an operator to remedy said condition, shall not be affected by this section.(f) When the Enforcement Section alleges a violation of Texas Natural Resources Code, § RSA 91.143, relating to false information filed with the Commission, if the records that are subject of the proceeding are incorrect, there is a presumption that the respondent filed the record knowing it to be incorrect. The presumption may be rebutted by competent evidence.16 Tex. Admin. Code § 1.25
The provisions of this §1.25 adopted to be effective June 1, 1991, 16 TexReg 2289; Adopted by Texas Register, Volume 42, Number 33, August 18, 2017, TexReg 4135, eff. 8/21/2017