(a) Appeal of an interim order.
  (1) Availability of appeal. Appeals are available for any order
of the presiding officer that immediately prejudices a substantial or material
right of a party, or materially affects the course of the hearing, other than
evidentiary rulings. Interim orders shall not be subject to exceptions or
application for rehearing prior to issuance of a proposal for decision.
  (2) Procedure for appeal. If the presiding officer intends
to reduce an oral ruling to a written order, the presiding officer shall so
indicate on the record at the time of the oral ruling and shall promptly issue
the written order. Any appeal to the commission from an interim order shall
be filed within ten days of the issuance of the written order or the appealable
oral ruling when no written order is to be issued. The appeal shall be served
on all parties by hand delivery, facsimile transmission, or by overnight courier
delivery.
  (3) Contents. An appeal shall specify the reasons why the interim
order is unjustified, improper, or immediately prejudices a substantial or
material right of a party or materially affects the course of the hearing.

  (4) Responses. Any response to an appeal shall be filed within
five working days of the filing of the appeal.
  (5) Motion for stay. Pending a ruling by the commissioners,
the presiding officer may, upon motion, grant a stay of the interim order.
A motion for a stay shall specify the basis for a stay. Good cause shall be
shown for granting a stay. The mere filing of an appeal shall not stay the
interim order or the procedural schedule.
  (6) Agenda ballot. Upon filing of an appeal, the Policy Development
Division shall send separate ballots to each commissioner to determine whether
they will consider the appeal at an open meeting. The Policy Development Division
shall notify the parties by letter whether a commissioner by individual ballot
has added the appeal to an open meeting agenda, but will not identify the
requesting commissioner(s).
  (7) Denial or granting of appeal.
    (A) If after ten days of the filing of an appeal, no commissioner
has, by agenda ballot, placed the appeal on the agenda of an open meeting,
the appeal is deemed denied.
    (B) If any commissioner has balloted in favor of considering
the appeal, it shall be placed on the agenda of the next regularly scheduled
open meeting or such other meeting as the commissioner may direct by the agenda
ballot. In the event two or more commissioners vote to consider the appeal,
but differ as to the date the appeal shall be heard, the appeal shall be placed
on the latest of the dates specified by the ballots. The time for ruling on
the appeal shall expire three days after the date of the meeting, unless extended
by action of the commission.
  (8) Reconsideration of appeal by presiding officer. The presiding
officer may treat an appeal as a motion for reconsideration and may withdraw
or modify the order under appeal prior to a commission decision on the appeal.
The presiding officer shall notify the commission of its decision to treat
the appeal as a motion for reconsideration.
(b) Motion for reconsideration of interim order issued by the
commission.
  (1) Availability of motion for reconsideration. Motions are
available for any interim order of the commission that immediately prejudices
a substantial or material right of a party, or materially affects the course
of the hearing, other than evidentiary rulings. Interim orders shall not be
subject to exceptions prior to issuance of a proposal for decision or motions
for rehearing prior to the issuance of a final order.
  (2) Procedure for motion for reconsideration. If the commission
does not intend to reduce an oral ruling to a written order, the commission
shall so indicate on the record at the time of the oral ruling. A motion for
reconsideration of an interim order issued by the commission shall be filed
within five workings days of the issuance of the written interim order or
the oral interim ruling. The motion for reconsideration shall be served on
all parties by hand delivery, facsimile transmission, or by overnight courier
delivery.
  (3) Content. A motion for reconsideration shall specify the
reasons why the interim order is unjustified or improper.
  (4) Responses. Any response to a motion for reconsideration
shall be filed within three working days of the filing of the motion.
  (5) Agenda ballot. Upon filing a motion for reconsideration,
the Policy Development Division shall send separate ballots to each commissioner
to determine whether they will consider the motion at an open meeting. The
Policy Development Division shall notify the parties by letter whether a commissioner
by individual ballot has added the motion to an open meeting agenda, but will
not identify the requesting commissioner(s).
  (6) Denial or granting of motion.
    (A) If after five working days of the filing of a motion no
commissioner has, by agenda ballot, placed the motion on the agenda for an
open meeting, the motion is deemed denied.
    (B) If any commissioner has balloted in favor of considering
the motion, it shall be placed on the agenda for the next regularly scheduled
open meeting or such other meeting as the commissioner may direct by the agenda
ballot. In the event two or more commissioners vote to consider the motion,
but differ as to the date the motion shall be heard, the motion shall be placed
on the latest of the dates specified by the ballots. The time for ruling on
the motion shall expire three days after the open meeting, unless extended
by action of the commission.


Source Note: The provisions of this §22.123 adopted to be effective November 1, 1993, 18 TexReg 6641; amended to be effective September 8, 1995, 20 TexReg 6627; amended to be effective December 29, 1995, 20 TexReg 10766; amended to be effective January 17, 1999, 24 TexReg 256; amended to be effective March 26, 2001, 26 TexReg 2351