1700, Conducting the Hearing

Revision 23-1; Effective July 31, 2023

1710 Starting the Hearing

Revision 23-1; Effective July 31, 2023

All hearings are recorded.

All parties, representatives and witnesses may participate by phone, in-person or a combination of the two.

At the scheduled time for the hearing, the hearings officer calls into the conference line and starts the recording. If all parties are participating face to face with the hearings officer, the conference call line should still be used to record the hearing. 

If the hearings officer is unable to use the conference call feature to record the hearing, then the hearing is recorded either by a tape recorder or a digital recording system.

The hearings officer:

  • advises all parties that the hearing is being recorded.
  • makes introductory remarks on the recording including the hearings officer's name, the date and time, the appeal ID, and the appellant's name. 
  • determines and confirms the names, addresses, and positions of all parties. (The hearings officer waits 7 minutes to allow time for all participants to appear.)
  • obtains an interpreter, if needed.
  • places all participants, including interpreters, under oath. (Attorneys acting in a non-legal capacity should be placed under oath when testifying. Attorneys acting in a legal capacity are not sworn in.)
  • announces the program involved, the date of agency action, the agency action taken and confirms the issue on appeal with all parties. 
  • explains the hearing procedures including how the hearing will proceed, interpreter procedures, if necessary, when a decision will be rendered, and what the appellant may do if not satisfied with the decision, and the time frames for action.
  • ensures that all evidence packets submitted by either party have been shared with the hearings officer and the other party or that the appellant has waived their right to have them and is willing to proceed with the hearing. The hearings officer must address this on the record.

1720 Invoking the Rule

Revision 23-1; Effective July 31, 2023

If a party requests a hearings officer to "invoke the rule" they are requesting that the hearings officer order witnesses excluded so that they cannot hear the testimony of other witnesses. The hearings officer may invoke the rule in response to the request or make the order without a request if it is necessary to limit the number of people in the room or on the phone. This rule does not authorize exclusion of the appellant, the appellant's representative, or the agency representative. When the rule is invoked, witnesses are asked to leave the room until it is their turn to testify. In a teleconference hearing, the hearings officer should arrange to call the witnesses when it is their turn to testify prior to disconnecting them.

1730 Controlling the Hearing - 1 TAC Section 357.5

Revision 23-1; Effective July 31, 2023

Hearings officers are responsible for regulating the conduct and course of the hearing to ensure due process and an orderly hearing. This includes:

  • setting the tone of the hearing through the use of calm authority;
  • emphasizing the requirement that only one person speak at a time; 
  • explaining that each party will have an opportunity to present their side; and
  • facilitating efficient presentation of evidence while limiting repetitive testimony.

When a participant behaves inappropriately and disrupts the hearing, the hearings officer may take appropriate action to correct this behavior, including but not limited to:

  • issuing warnings that explain expected behavior and the consequences of noncompliance;
  • offering a recess to allow time for participants to gain self-control;
  • rescheduling the hearing for a future date; or
  • muting the participant.

Muting a participant must only be used to control the hearing as a last resort. If used inappropriately, the parties' rights to a fair and impartial hearing could be compromised. Before muting a party:

  • the hearings officer should warn the disruptive party that if they do not remain calm, their phone will be muted.
  • the hearings officer should consider permitting the disruptive party an opportunity to present their testimony and evidence outside the normal order in the hearing. 
  • if the party continues the disruptive behavior, the hearings officer must advise them that their phone will be muted, but that they must stay on the line as they will still be able to listen to the hearing. The hearings officer must further advise the participant that they can present their testimony when the mute function is turned off.
  • the hearings officer should also explain that if the disruptive party hangs up while their phone is on mute, the hearings officer may rule that they abandoned the hearing.
  • the hearings officer should also advise the party that if they disconnect, they must call back into the hearing immediately. Failure to do so may result in the hearings officer ruling that they abandoned the hearing.

1731 When a Party Disconnects from the Hearing

Revision 23-1; Effective July 31, 2023

1731.1 If All Parties Disconnect from the Hearing

Revision 23-1; Effective July 31, 2023

If all or multiple participants drop off the line, the hearing should be rescheduled to a later date unless all participants have had an opportunity to provide testimony, all questions have been answered, and there is enough information on the record to issue a decision on the case.

Known Issues

If an individual disconnects from the hearing when there are known issues with the teleconferencing system or weather-related issues in the individual’s particular area, the hearing should be rescheduled to a later date unless all participants have had an opportunity to provide testimony, all questions have been answered, and there is enough information on the record to issue a decision on the case.

1731.2 If Only the Appellant Disconnects from the Hearing

Revision 23-1; Effective July 31, 2023

If only the appellant disconnects from the hearing, there are two options:

Option 1:  The hearings officer may state on the record that they will allow five minutes for the appellant to call back in. If, after five minutes, the appellant has not called back, the hearings officer should state, “The appellant seems to have abandoned the hearing. I have allowed the appellant an opportunity to call back into the hearing. I will send a letter to the appellant advising them to contact my office within 10 days. If the appellant provides a good cause reason for disconnecting from the hearing, I will reschedule it. If they do not respond, the hearing will be dismissed." The hearings officer should then send an abandonment letter to the appellant advising them to call within 10 days if they wish to reconvene the hearing and that the appeal will be dismissed if they do not respond.

Option 2:  If the appellant does not call back and there is enough information to issue a decision either sustaining or reversing the agency’s action, the hearings officer should state that on the record.

1731.3 If Only the Agency Representative Disconnects from the Hearing

Revision 23-1; Effective July 31, 2023

If only the agency representative disconnects from the hearing the hearings officer should state on the record that they will allow five minutes for the agency representative to call back in. If, after five minutes, the agency representative has not called back in or contacted the Fair Hearings Office and there is not enough information on the record to issue a decision sustaining the agency’s action, the hearings officer should explain that they will be issuing a decision reversing the agency’s action. It is very important that the hearings officer clearly explain to the appellant that if the agency representative contacts the Fair Hearings Office and shows good cause for not calling back into the hearing, the record will be reopened, and a new hearing scheduled.

1731.4 If Only a Witness Disconnects from the Hearing

Revision 23-1; Effective July 31, 2023

If only a witness disconnects from the hearing the hearings officer should state on the record that they will allow five minutes for the witness to call back in. If, after five minutes, the witness has not called back in, the hearings officer should explain that they are going to move forward but will allow the witness to participate if they call back in.

1740 When the Agency Representative Does Not Appear for the Hearing

Revision 23-1; Effective July 31, 2023

If the agency representative does not appear for the hearing and does not submit written documentation, the hearings officer opens the record and states that the agency representative did not appear. The hearings officer states that the appellant is present and available either by phone or in person. The hearings officer will take no testimony. The hearings officer closes the record and issues a decision reversing the agency action. The hearing decision will instruct the agency to take the appropriate steps to implement the decision.

If the agency representative does not appear for the hearing but submits written documentation, the hearings officer opens the record and makes a statement to that effect. The hearings officer further states that, while the agency representative submitted documents, the absence of the agency representative prevents the documents from being authenticated or explained and prevents the appellant from cross-examining the agency concerning the documents. For these reasons, the documents will not be entered into evidence. The hearings officer will take no testimony. The hearings officer will close the hearing and issue a written decision reversing the agency action. The hearings officer will instruct the agency to take the appropriate action to implement the decision.

1750 When the Appellant Does Not Appear for the Hearing

Revision 23-1; Effective July 31, 2023

1751 Hearings Held Via Conference Call

Revision 23-1; Effective July 31, 2023

If the hearing is conducted via conference call, the hearings officer waits seven minutes from the time listed on the appointment notice to allow parties to call in to the conference call. If the appellant fails to call in at the scheduled time, the hearings officer opens the record and states that the agency representative called in, but the appellant failed to call in. The hearings officer takes no testimony but verifies the appointment notice was sent to the appellant’s current address on file with the agency. The hearings officer notes the time given on the notice and the time the record is closed. The hearings officer closes the record and issues a written decision dismissing the appeal.

1752 Face-to-Face Hearings

Revision 23-1; Effective July 31, 2023

If the appellant fails to appear at the hearing, the hearings officer waits seven minutes from the time listed on the appointment notice for all parties to appear. If the appellant fails to appear, the hearings officer opens the record and states that the agency representative appeared, but the appellant did not appear. The hearings officer takes no testimony but verifies the appointment notice was sent to the appellant’s current address on file with the agency. The hearings officer notes the time given on the notice and the time the record is closed. The hearings officer closes the record and issues a written decision dismissing the appeal. 

1760 Short Hearings

Revision 23-1; Effective July 31, 2023

If the agency representative admits early in the hearing that they are unable to defend the agency action or admits that the agency action was taken in error, the hearings officer:

  • ensures that all parties are under oath;
  • determines whether the appellant understands the action under appeal;
  • determines whether the action the agency has taken or plans to take; and
  • explains that the hearing will not continue.

If all these conditions are met, the hearings officer reverses the agency action. The hearings officer then issues the decision using the shortened decision format.

1770 Recessed Hearings - 1 TAC Section 357.19(d)

Revision 23-1; Effective July 31, 2023

Once a hearing begins, the hearings officer may recess the hearing proceedings if the hearings officer finds good cause for the recess. Following notice to both sides, the hearings officer may reconvene the hearing, if necessary.

Example: The appellant asks the hearings officer if they may leave the hearing open so they can obtain additional information to support their case. The hearings officer agrees to leave the record open and sets a deadline for the appellant to submit the additional information. The hearings officer may also recess to request a legal or policy clarification. Once that information is received, the hearings officer ensures that all parties receive the additional documents or the legal or policy clarification. Then the hearings officer schedules a date to reconvene the hearing. The reconvened hearing will focus on the additional documentation provided by the appellant or the legal or policy clarification.

If no additional information is received from the appellant by the due date, the hearings officer issues a decision based on evidence provided at the hearing.

1771 When a Party Does Not Appear at a Reconvened Hearing

Revision 23-1; Effective July 31, 2023

If a hearing is held and recessed to obtain additional information, the hearings officer must reconvene the hearing to discuss the new information or clarification with all parties. If the party that provided the additional information is not present for the reconvened hearing, the reconvened hearing does not proceed, and the hearings officer will write the decision based on the record previously developed. The hearings officer must make sure all parties understand that additional information will not be admitted to the record if the party does not appear for the hearing.

If the party that provided the additional information does appear for the reconvened hearing, the hearings officer should proceed with the hearing to have the new information offered, admitted and discussed. It is not ex parte communication if all parties were notified of the scheduled reconvened hearing and the information was shared with all parties. The hearings officer must make this clear on the record. Documents can be admitted into the record and testimony can be given when only the party that provided the additional information is present at a reconvened hearing.