Section 14.23 - Conduct of Hearings of the Produce Recovery Fund Board(a) Representation. Parties to proceedings before the Board shall have a right to appear and may be represented by counsel, or any other designated person, and shall have a right to have witnesses appear to testify on their behalf.(b) Review of Department Record and Presentation By Parties. (1) In hearing cases in which a Notice of Protest has been filed, the Board shall review and base its determination on the record of the hearing held before the department and any subsequent matters filed by parties to the case which are admitted into the record by the Board, including any exhibits accepted into the record at the hearing before the Board.(2) The Board may take additional testimony of parties or other witnesses and admit into the record any documentary evidence that it deems necessary to clarify the record of the hearing before the department and/or aid the Board in making its determination on the case.(3) At the Board's discretion, any party may present oral testimony or argument to the Board by filing with the Board a written request to do so at least five working days prior to the day on which the Board is to consider the case. The Board may waive the five working day requirement for good cause shown.(c) Ruling on Objections, Motions; Filing of Motions. (1) The Board shall have the authority to rule on motions, on the admissibility of evidence, on objections, and on amendments to pleadings.(2) Any motion relating to a pending proceeding shall, unless made during a hearing, be written, set forth under oath the relief or order sought and the specific reasons and grounds therefor, and be directed to the Board. Any motion, including a motion for continuance shall be filed with the Hearings Clerk, General Counsel Division, Texas Department of Agriculture, P.O. Box 12847, Austin, Texas 78711, and distributed to all interested parties, under a certificate of service, not less than seven working days prior to the designated date that the matter is set to be heard by the Board. The Board may waive the seven day requirement for good cause shown. A reply to such motion may be filed by any other party to the proceeding. Pre-hearing motions shall be ruled on by the Chairman at the earliest time practicable, and final determinations on any such motions shall be signed by the Chairman on behalf of the Board.(3) When necessary, in the judgment of the Chairman and/or the Board, or upon request of a party, a hearing may be set to consider any motion. A request for hearing on a motion, or a request for hearing on a final determination issued in response to a motion shall be filed with the Board no later than three working days after receipt of the final determination by the requesting party.(d) Exhibits. (1) All exhibits admitted into the record of the hearing before the department and the tape recording of the hearing shall be tendered for admission into the record of the hearing before the Board. All such exhibits shall be available for inspection by parties prior to the beginning of the hearing, and are available prior to the hearing date to any interested person or party upon filing of a written request to the Deputy General Counsel, General Counsel Division, Texas Department of Agriculture.(2) Each party shall deliver to the other party at least three working days prior to the hearing date, any documents in addition to those included in the record of the hearing before the department which the party intends to offer at the hearing before the Board.(e) Recording the Hearing and Preparation of Transcript.(1) All hearings before the Board shall be tape recorded. All tape recordings of hearings before the Board shall be maintained by the General Counsel Division, Texas Department of Agriculture.(2) Upon request, and payment of the appropriate cost by any party, the department shall prepare a copy of the tape recording of a hearing conducted by the Board.(3) Upon written request of any party, the department shall prepare, or order the preparation of, a transcript of a hearing conducted by the Board. The Board may assess the cost of the transcript to one or more parties.(4) In the event a final decision of the Board is appealed to the district court, the Board may require the appealing party to pay all or part of the cost of preparation of the original or a certified copy of the record of the Board proceeding that is required to be transmitted to the reviewing court, as is specified by the Board.4 Tex. Admin. Code § 14.23
The provisions of this §14.23 adopted to be effective August 13, 1997, 22 TexReg 7223.