Sean Farrell and Felipe Alonso III 2014-12-23 04:59:44
How to prepare for a hearing. WHAT IS SOAH? The State Office of Administrative Hearings was created in 1991 by the Texas Legislature “as an independent forum for the conduct of adjudicated hearings in the executive branch of state government.”1 SOAH holds a variety of events on behalf of numerous state agencies, including hearings and alternative dispute resolution proceedings. 2 SOAH employs neutral, experienced attorneys who serve as administrative law judges.3 DOES SOAH HANDLE ALL AGENCY HEARINGS? No. For example, the Railroad Commission of Texas manages all cases with its own staff ALJs.4 And the Public Utility Commission of Texas refers most contested dockets to SOAH, but it has staff ALJs that oversee uncontested dockets and the occasional docket where the commissioners elect to preside over the hearing.5 WHERE IS SOAH? SOAH is headquartered in Austin, where most hearings are held,6 and there are field offices in seven other cities. In some cases SOAH will hold hearings at public buildings in one of 31 remote sites.7 WHAT IS THE ALJ’S ROLE? ALJs (some cases are assigned more than one8) generally serve as both judge and jury. ALJs address procedural matters, discovery, and evaluate the evidence and argument presented at hearing. WHAT LAW APPLIES? In most cases, the agency defers to SOAH’s procedural rules.9 However, some agencies, including the Public Utility Commission, the Texas Commission on Environmental Quality, the Employees Retirement System of Texas, and at times the Office of the Texas Comptroller of Public Accounts, require that SOAH implement the agency’s own procedural rules while their matters are before SOAH.10 Sometimes the respective procedural rules also refer to the Texas Rules of Civil Procedure and the Texas Rules of Evidence.11 Finally, the Texas Administrative Procedure Act applies and also affects appeals of final orders.12 The substantive law includes the statutes and rules concerning the referring agency. Typically, the preliminary order in the proceeding will provide a nonexclusive list of issues the docket should address and will also identify applicable statutes and rules. HOW SHOULD I PREPARE? If you’re not familiar with SOAH proceedings, one option is to refer the matter to an attorney who practices administrative law or consult with one regarding your case. Attorneys who regularly practice before SOAH and the specific agency may be aware of advantageous case law, precedent, and relevant procedural and substantive rules. They may also have established credibility among the SOAH ALJs and agency staff. If you decide to retain the matter, you should research the agency-specific statutes and rules, as well as the agency’s procedural rules (if applicable) and SOAH’s administrative rules.13 It would also be a good idea to observe a SOAH proceeding, preferably one involving the same agency and type of dispute.14 Some lawyers may find SOAH proceedings more collegial than the civil proceedings to which they are accustomed. The differences are important to understand beforehand. For example, in proceedings that the Public Utility Commission refers to SOAH, testimony is filed in advance of a hearing in a written question-and-answer format and then entered into the record at the hearing.15 I WON! … OR DID I? Be careful—an ALJ’s ruling after the hearing is not always final. Depending on the referring agency and the type of matter, the ALJ either renders a final verdict or submits a “proposal for decision” to the delegating agency.16 In the case of a PFD, the parties would file exceptions to the PFD and replies to those exceptions, after which the ALJ may or may not amend the PFD in response.17 The agency would then review the (possibly) amended PFD and may adopt it, modify it, or reject it in its final order. However, the agency can alter a finding of fact or conclusion of law, or vacate or modify an order issued by the ALJ only under certain conditions, for example, if it determines the ALJ committed certain legal or technical errors.18 I DID NOT WIN. WHAT NOW? Refer to the agency’s procedural rules and the Texas Administrative Procedure Act for the rules governing the timing and grounds for appeal.19 In cases where SOAH is the final arbiter of a contested matter, consult the relevant administrative rules.20 RESOURCES SOAH’s website, soah.state.tx.us, provides a wealth of useful information, including responses to several FAQs as well as a Web page for non-attorneys that may also prove useful for an attorney unaccustomed to SOAH. These can be accessed at soah.state.tx.us/about-us/faq/index.asp and soah.state.tx.us/not-an-attorney/hearings.asp. NOTES 1. Tex. Gov’t Code ¤ 2003.201. 2. See http://www.soah.state.tx.us/about-us/SOAH-teams.asp for more information on the types of hearings handled by SOAH. 3. See http://www.soah.state.tx.us/about-us/index.asp. 4. The Texas Railroad Commission refers to its ALJs as examiners. 5. See 16 T.A.C. ¤ 22.207. 6. See http://www.soah.state.tx.us/about-us/office-locations/main-austin.asp. 7. See http://www.soah.state.tx.us/about-us/office-locations/remote/index.asp. 8. See 1 ¤ 1 T.A.C. 155.151(d). 9. See 1 T.A.C ¤ 155.1 et seq. If you have previously practiced before SOAH, please note that there are recent changes to SOAH’s procedural rules and its electronic filing system. See http://www.soah.state.tx.us/index.asp#arbappeals. 10. See http://www.soah.state.tx.us/research-tools/index.asp for links to the procedural and evidentiary rules applicable to respective agencies. See also http://www.soah .state.tx.us/not-an-attorney/hearings.asp and 1 T.A.C. ¤¤ 155.1-155.3. 11. See, e.g. 16 T.A.C. ¤ 22.141 (establishing in part that the scope of discovery in Public Utility Commission proceedings includes any matter not privileged or exempted by the Texas Rules of Civil Evidence or the Texas Rules of Civil Procedure). See also 16 T.A.C. ¤ 22.221 (establishing that the “Texas Rules of Civil [sic] Evidence” apply to contested Public Utility Commission cases). 12. See 1 T.A.C. ¤155.3(a) and Tex. Gov’t Code ¤ 2001.001 et seq. 13. See 1 T.A.C. ¤ 155.1 et seq. You should not retain the matter if you lack the ability to timely acquire the legal knowledge, skill, and training reasonably necessary for the representation of the client. See Tex. Disciplinary Rule of Professional Conduct ¤ 1.01. 14. See http://www.soah.state.tx.us/Docket/SOAH.pdf for SOAH’s current docket schedule. 15. 16 T.A.C. ¤ 22.225. http://texinfo.library.unt.edu/texasregister/html/2000/dec-22/WITHDRAWN/16.ECONOMIC%20REGULATION.html. 16. See generally ¤¤ 1 T.A.C. 155.501-155.507. See also Beal, Ron “From Proposal for Decision to Final Decision: What Happens in Between,” 15 Texas Tech Admin. Law Journal 113 (Fall, 2013). 17. See ¤ 1 T.A.C. 155.507. 18. Tex. Gov’t Code ¤ 2001.058(e). However, see c.f. Tex. Gov’t Code ¤ 2003.049(g), which allows the Public Utility Commission to modify a SOAH ALJ’s findings of fact or conclusions of law for legal or technical reasons, but also for policy reasons or because it does not meet a preponderance of the evidence. See Southwestern Public Service Company v. Public Utility Commission of Texas, 962 S.W.2d 207 (Tex. App.—Austin, 1998) (holding that pursuant to this statute, the Public Utility Commission assumes the role of an original fact-finder upon review of a SOAH ALJ’s proposal for decision). 19. Tex. Gov’t Code ¤ 2001.001 et seq. 20. See, e.g. 1 T.A.C. ¤ 159.255, regarding appeal of SOAH ALJs’ decisions in administrative license revocation proceedings. Please note that SOAH is currently undergoing review by the Texas Sunset Advisory Commission. The TSAC will render a decision in mid-January 2015 on whether to adopt various staff report recommendations concerning SOAH. Accordingly, anyone referencing this article should investigate whether the TSAC’s decisions changed how their particular case would be handled. For more information, go to https://www.sunset.texas.gov/reviews-and-reports/agencies/state-office-administrative-hearings-soah. SEAN FARRELL and FELIPE ALONSO III are associates of the Austin firm of Herrera & Boyle, where they represent clients in administrative law matters before a variety of state agencies and SOAH.
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