(G) Upon notifying all parties, the administrative law judge
may communicate with division or agency employees who have not participated
in the hearing, to use the special skills or knowledge of the division and
agency and its staff in evaluating the evidence. The administrative law judge
may allow all parties to be present during this communication and at his sole
discretion, may allow parties to question the employee.
    (H) Ex parte consultations. Any information considered by the
administrative law judge in deciding the contested case must be shared with
all parties. Private (ex parte) consultations, whether oral or written, about
the substantive issues of the contested case are allowed only if their substance
is shared with all parties.
    (I) Formal exceptions to rulings of the administrative law
judge during the hearing shall be unnecessary. It shall be sufficient that
the party at the time any ruling is made or sought shall have made known to
the administrative law judge the action desired. When testimony is excluded
by the administrative law judge, the party offering such evidence shall be
permitted to make an offer of proof by dictating or submitting in writing
the substance of the proposed testimony prior to the conclusion of the hearing,
and such offer of proof shall be sufficient to preserve the point for review.
The administrative law judge may ask such questions of the witness as he deems
necessary to satisfy himself that the witness would testify as represented
in the offer of proof.
  (6) Recording of Proceedings.
    (A) The proceedings of the hearing shall be electronically
recorded. Upon request of any party to the proceedings, a copy of such recording
shall be made available to the requesting party at cost.
    (B) Any party to the proceedings may request the presence of
a court reporter to record the proceedings. Selection and payment for the
services of the reporter shall be borne by the requesting party. All costs
of transcriptions of any recordings shall be at the expense of the requesting
party. A transcription becomes official when certified by the administrative
law judge.
  (7) Conduct of Hearings.
    (A) The administrative law judge is in charge of the proceedings.
The administrative law judge has the authority to administer oaths, examine
witnesses, direct the issuance of subpoenas, and rule on the admissibility
of evidence and amendments to pleadings. He may also establish reasonable
time limits for conducting individual hearings, request additional information,
and issue intermediate orders. The administrative law judge has the authority
to issue any orders necessary to enforce his rulings. These include, but are
not limited to:
      (i) exclusion of evidence or witnesses;
      (ii) exclusion of oral argument;
      (iii) summary orders or default judgment on any issues; or

      (iv) postponement or dismissal of the hearing with or without
prejudice.
    (B) The petitioner shall open and present its evidence to establish
its position on the matters involved. The respondent shall follow and present
its evidence. The petitioner and respondent may thereafter present rebuttal
evidence only. The petitioner shall be given the opportunity to offer final
argument and the respondent the opportunity to respond in final argument but
no additional evidence shall be presented absent leave of the administrative
law judge for good cause shown.
    (C) Continuances. Continuances may be granted by the administrative
law judge hearing the contested case. Motions for continuance shall be governed
by §155.33(b) and (c) of this title.
  (8) Miscellaneous
    (A) Place of Filing. All notices, pleadings, motions, answers,
affidavits, and other filings in a contested case shall be filed with the
State Office of Administrative Hearings at 300 West 15th Street, Suite 502,
Austin, Texas 78701-1649.
    (B) Computation of Time. In computing any period of time prescribed
or allowed by these rules, by order of the administrative judge, board, or
division, or by any applicable statute, the period shall begin on the day
after the act, event, or default in controversy and conclude on the last day
of such computed period, unless it be a Saturday, Sunday, or legal holiday,
in which event the period runs until the end of the next day which is not
a Saturday, Sunday, or legal holiday.
    (C) Agreement to be in Writing. No stipulation or agreement
between the parties or their representatives regarding any matter involved
in any proceeding before the board, division, or administrative law judge
may be enforced unless it is in writing and signed by the parties or their
representatives or unless it is dictated into the record during the course
of a hearing.
(i) Final Decision.
  (1) The administrative law judge shall draft and recommend
to the Texas Board of Criminal Justice a proposed final decision based solely
on the record which addresses all matters presented at the hearing. The proposed
decision shall include findings of fact and conclusions of law, separately
stated. The draft and recommendation shall be forwarded to the Board with
a copy sent to each party and referred to the subcommittee for division affairs
for review.
  (2) After examination of the draft and recommendation and review
of the record of the hearing, the subcommittee shall indicate whether it will
accept or reject the recommendation of the administrative law judge. A copy
of the proposed decision shall be served on all parties and an opportunity
shall be afforded to the party adversely affected by the proposed decision
to file exceptions and present a brief to the board. Said exceptions and brief
shall be filed within 10 days after the date of service of the proposed decision
of the subcommittee with a copy served on the opposing party. Replies to such
exceptions shall be filed within 10 days after the date for filing of such
exceptions with a copy served on the opposing party.
  (3) The Board and subcommittee shall base their decision solely
on the record. The Board and subcommittee shall not substitute their judgment
for that of the division. The Board and subcommittee shall affirm the proposed
action of the division unless they find that the proposed action is unlawful,
arbitrary, or not supported by substantial evidence in the record.
  (4) The Texas Board of Criminal Justice shall render a decision
within 60 days after the draft and recommendation of the administrative law
judge is served on all parties. The decision must be in writing, and each
board member joining in the decision must sign it. A party in a contested
case shall be notified of any decision of the Board and a copy of the decision
shall be forwarded to all parties by registered or certified mail, return
receipt requested within five days after the final signature. A copy of the
decision shall also be forwarded to the attorney of record, if any, for the
party in a contested case. The agency shall keep a copy of the decision and
shall keep an appropriate record of the mailing.
  (5) A decision in a contested case is final: on the expiration
of the period for filing a motion for rehearing if a motion for rehearing
is not filed in time; on the date the order overruling the motion for rehearing
is rendered or the motion is overruled by operation of law if a motion for
rehearing is filed on time; or on the date the decision is rendered if the
agency finds that an imminent peril to the public health, safety, or welfare
requires immediate effect of a decision. If a decision becomes final on the
date the decision is rendered, the decision must recite a finding that an
imminent peril to the public health, safety, and welfare requires immediate
effect of the decision and the fact that the decision is final and effective
on the date rendered.
(j) Motion for Rehearing.
  (1) In order to preserve error for judicial review, the party
who is aggrieved by a decision of the Board must file a written motion for
rehearing with the Board.
  (2) The motion for rehearing must be addressed to the Chairperson
of the Board of Criminal Justice and must be filed with the Executive Assistant
to the Chairperson of the Board at P.O. Box 13084, Capitol Station, Austin,
Texas 78711 within 20 days after the date that the party or the party's attorney
of record is notified of the Board's decision. A copy of the motion for rehearing
must be served on the opposing party by certified mail, return receipt requested,
on the same day that motion is filed with the Board.
  (3) A reply to a motion for rehearing must be filed with the
Texas Board of Criminal Justice not later than 30 days after the date that
the party or the party's attorney of record is notified of the Board's decision.
A copy of this reply must be served on the opposing party by certified mail,
return receipt requested on the same day that the reply is filed with the
Board.
  (4) The Board shall either grant or deny the motion for rehearing
within 45 days after the date that the decision is rendered. If the Board
does not rule on the motion for rehearing, the motion is overruled by operation
of law 45 days after the date the party or his attorney is notified of the
decision of the Board.
  (5) The Board may by written order extend the time for filing
a motion or reply or ruling on the motion for rehearing, except that an extension
may not extend the period for Board action beyond the 90th day after the date
on which the party or the party's attorney of record is notified of the Board's
decision. In the event of an extension, a motion for rehearing is overruled
by operation of law on the date fixed by the order or, in the absence of a
fixed date, 90 days after the date on which the party or the party's attorney
of record is notified of the Board's decision.
(k) Record. The record in a hearing under these standards consists
of:
  (1) a copy of the division's notice of proposed action that
generated the appeal;
  (2) the request for assignment of administrative law judge;

  (3) the notice of hearing;
  (4) all pleadings, motions, and intermediate rulings;
  (5) evidence received or considered;
  (6) a statement of matters officially noticed;
  (7) questions and offers of proof, objections, and rulings
on them;
  (8) proposed findings and exceptions;
  (9) any decision, opinion, or report by the administrative
law judge presiding at the hearing;
  (10) all staff memoranda or data submitted to or considered
by the administrative law judge or members of the agency who are involved
in making the decision;
  (11) the recording and transcription, if any, of the proceedings;

  (12) the administrative law judge's draft and recommendation;

  (13) the recommendation of the subcommittee of the board;

  (14) the Board's decision;
  (15) the motion for rehearing and any replies to it; and
  (16) the Board's ruling on the motion for rehearing.


Source Note: The provisions of this §163.47 adopted to be effective August 16, 1995, 20 TexReg 5799; amended to be effective October 13, 1997, 22 TexReg 9896; amended to be effective June 20, 2002, 27 TexReg 5220