pleadings and motions practice at soah practical … · motions without getting into the...

1 The opinions and thoughts expressed herein are solely those of the authors and do not necessarily reflect the views of SOAHat large (or anyone else, for that matter).

PLEADINGS AND MOTIONS PRACTICE AT SOAHPRACTICAL TIPS AND TACTICS1

AMI L. LARSONCRAIG BENNETT

State Office of Administrative Hearings Austin

State Bar of Texas18TH ANNUAL ADVANCED

ADMINISTRATIVE LAW COURSESeptember 28 - 29, 2006

Austin

CHAPTER 5.2

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Pleadings and Motions Practice at SOAH Practical Tips and Tactics Chapter 5.2

TABLE OF CONTENTS

I. FILING REQUIREMENTS FOR ALL DOCUMENTS FILED AT SOAH . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1A. Eight is Too Much - One Is Enough . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1B. Nix Ex Parte Communications . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. NOTICE OF HEARING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1A. Tell Me More! . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

III. MOVING RIGHT ALONG... MOTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2A. (At Least) Two Sides to Every Motion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3B. What’s In A Name? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3C. Who’s to Say? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

IV. PLEADINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

V. DEFAULT PROCEEDINGS: WHAT TO DO WHEN THE OTHER CHAIR IS EMPTY . . . . . . . . . . . . . . . . . 4A. What’s the big idea? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4B. First Things First - Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5C. How’s the Service Here? - Proper Service of Notice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5D. How Much Is Enough? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6E. Does the Punishment Fit the Crime? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7F. Default or Dismiss? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

VI. SUMMARY DISPOSITION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7A. Hearing? We don’t need no stinking hearing! . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7B. Follow the Yellow Brick Road . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8C. Live by the Sword, Die by the Sword . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8D. Can you hear me now? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8E. One Final Note about Summary Disposition: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

VII. LET’S GO SURFING NOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8


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P L E A D I N G S A N D M O T I O N SPRACTICE AT SOAH PRACTICALTIPS AND TACTICS

This paper is intended to offer a reminder of thebasic requirements for motions and pleadings practice atthe State Office of Administrative Hearings (SOAH).The rules discussed herein are those that practitionerscommonly misunderstand, overlook, ignore, or evenunilaterally revise.

Additionally, we hope to encourage those appearingbefore SOAH to recognize the purpose behind the rulesand think beyond the basic requirements. Doing so willhelp you to increase the efficiency of proceedings, boostyour chances of winning, and keep the ALJs happy.

I. FILING REQUIREMENTS FOR ALLDOCUMENTS FILED AT SOAH

A. Eight is Too Much - One Is EnoughUnless otherwise ordered by the judge, only the

original and no additional copies of any pleading ordocument shall be filed at SOAH.2 Frequently, five ormore copies of the exact same document are filed with anALJ who, in turn, will file all but the original in thecircular file.3

Filing multiple duplicate copies does not make yourcase any stronger or more persuasive. Instead, thispractice merely serves to kill trees and frustrate the ALJs,who must review each document to determine whether itshould be saved or thrown away. Please resist thecompulsion to file multiple copies of the same thing atSOAH unless the judge specifically orders you to do so.

B. Nix Ex Parte CommunicationsAny person filing a document with SOAH in a case

shall, on the same date as the document is filed, providea copy to each party or the party’s authorizedrepresentative. The person filing the document shallinclude a certificate of service. If no certificate ofservice is included, SOAH may return the filing, sendnotice of noncompliance, and refuse to consider thefilings until all parties have been served or send a copy toall parties.4

This should go without saying, but apparently itdoes not. It is surprising how often filings are receivedat SOAH that do not contain a certificate of service.When that happens, we have no way of knowing whether

you served the other side, even if you did. Therefore, wehave to either send your documents to the other partiesourselves or give the filing back to you so you canproperly copy all parties. Either way, this slows downthe process, is not fun for anyone, and kills yet moretrees. Please be sure to include the certificate of serviceon all filings at SOAH.

The certificate of service should include thefollowing information: date of service; method of service,i.e. hand-delivery, certified mail, fax transmission, etc.;and physical address or fax number to which documentwas delivered/sent/faxed. With that information, if theother side claims never to have received the document, itis easy for you to show that it was properly sent.

Note that service by email transmission, under thecurrent rules, may only be used upon the agreement ofthe parties.5 Also, a business record affidavit ortranscript may be filed at SOAH with notice to the otherparties that the filing has been made. The underlyingdocuments or transcript need not be provided to the otherparties pursuant to SOAH rules and the Texas Rules ofEvidence.6

II. NOTICE OF HEARINGThe purpose of the notice of hearing is just that - to

give notice of the place, date, time, and purpose of thehearing. For notice to be meaningful, it must be providedsufficiently in advance of the hearing date to allow theparties enough time to adequately prepare. Generally,notice provided at least 10 days prior to the hearing isdeemed reasonable.7

SOAH rules require that all notices of hearingcomply with the APA8 and cite to Chapter 155 of theSOAH rules.9

The APA requires that notices of hearing contain thefollowing elements:

• a statement of the time, place, and nature of thehearing

• a statement of the legal authority and jurisdictionunder which the hearing is to be held

• a reference to the particular sections of the statutesand rules involved; and

• a short, plain statement of the matters asserted

2 1 TEX. ADMIN. CODE (TAC) § 155.23.

3 A.K.A. the garbage can.

4 1 TAC § 155.25.

5 1 TAC § 155.25(a).

6 1 TAC § 155.25(a) and TRE 902(10).

7 TEX. GOV’T CODE § 2001.051(1).

8 TEX. GOV’T CODE § 2001.052.

9 1 TAC § 155.27.


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But what does that mean? How specific must the noticebe?

The notice of hearing doesn’t need to contain muchto be legally sufficient for due process purposes -- justenough to make sure the responding party can prepare forand is not surprised at the hearing.10 However, it isimportant to keep in mind that less is not always more.

A thorough notice has the advantage of fosteringcommunication between the parties and denying the otherside the chance to claim an inability to adequatelyprepare for hearing. Moreover, including someadditional information in the notice can improve theagency’s chances of obtainig a default if the other sidefails to appear at the hearing.

• The short, plain statement of matters assertedshould consist of the factual basis upon which theagency is relying to support its allegations and therelief sought. Although a detailed rendition of theentire case history is not required, an agency’sallegations may not simply mirror the language ofthe statute or rule allegedly violated. The noticeshould list briefly the basic facts that constitute thealleged violation. It is good practice for an agencyto set forth briefly the who/what/when/where/whyfor each violation alleged and penalty sought.

For example, the following language alleging a violationof the Texas Alcoholic Beverages Code is insufficientnotice of the matters asserted:

On [a certain date], the licensed ownerconducted his business against the public’sgeneral welfare, health, peace, morals, safety,and sense of decency.

Some basic facts should be set forth to show whatconduct allegedly engaged in by Respondent constitutesa violation. In the example cited above, was the violationbased on Respondent’s practice of serving alcohol tominors? Regularly allowing fighting on the premises?Selling pornography? Operating a bar in a residentialneighborhood? The notice of hearing should not requirethe Respondent, the ALJ, or the courts to guess as to yourmeaning.

Inclusion of some basic facts is necessary to putRespondent on notice of the conduct against which hemust defend. This is a requirement of the APA andSOAH rules, not to mention basic constitutional dueprocess. Although the concept of meaningful notice issomewhat flexible and case-dependent, “[a] party is

entitled to know the issues on which [the] decision willturn and to be apprised of the factual material on whichthe agency relies for decision so that he may rebut it.”11

A. Tell Me More!The APA states that where a party is unable to state

matters in detail at the time the initial notice is served, theinitial notice may be limited to a statement of the issuesinvolved. An application may be made, however, for amore definite and detailed statement which must then befurnished not less than three days before the date set forhearing.12

It would be wise to file an application for a moredefinite statement as soon as possible upon receiving anotice that you believe lacks sufficient detail to allow youto adequately prepare your case. If you appear at thehearing and argue that you were unable to adequatelyprepare due to insufficient notice but you did not ask fora more detailed statement, the ALJ may not be verysympathetic to your plight.

III. MOVING RIGHT ALONG... MOTIONSWithout getting into the stimulating debate about

whether motions are pleadings or vice versa, suffice it tosay that the information required for pleadings13 shouldalso be included in motions. Moreover, SOAH’sprocedural rules provide some additional requirementsspecific to motions in general and to particular types ofmotions.14

• Timing: In general, motions shall be filed no laterthan seven days before the date of the hearing. TheALJ may consider a late-filed motion for goodcause. If you must file a motion after the deadline,be sure the motion demonstrates good cause for thelate filing. Most ALJs will entertain late-filedmotions where good cause is shown. “I forgot,”however, is not good cause.

• New Dates: If your motion seeks to extend anestablished deadline or request any date other thanthose already set, you must include in your motiona proposed date (or, better yet three proposed dates)for the new setting. Ideally you will confer with the

10 Roth v. Montemayor, 50 S.W.3d 54, 57 (Tex.App.-Austin 2001, no pet.).

11 Bowman Transp., Inc. v. Arkansas-Best Freight Sys.,Inc, 419 U.S. 281, 288 n.4 (1974).

12 TEX. GOV’T CODE § 2001.052(4)(b).

13 Pleadings requirements are found at 1 TAC § 155.29and are discussed further in section IV of this paper.

14 The chart in Appendix A shows the requirements forspecific types of motions.

http://www.TexasBarCLE.com/CLE/PMCasemaker.asp?table=TX_caselaw&volume=50&edition=S.W.3d&page=54&id=109961_01

http://www.TexasBarCLE.com/CLE/PMCasemaker.asp?table=US_supremeopinions&volume=419&edition=U.S.&page=281&id=109961_01


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other parties and propose dates that work foreveryone. In any event, you must include acertificate of conference in your motion to indicatewhether other parties oppose the date(s) you areproposing. Even if you can’t reach the other party,a certificate of conference should still be set forthexplaining the efforts you made to reach the otherparties to confer.

A. (At Least) Two Sides to Every Motion Responses to motions must be in writing and filed

within five days of the receipt of the motion or on thedate and time for hearing, whichever is earlier.15

Responses to late-filed motions (for good cause shown)may be made orally at hearing. ALJs will normally waitto rule on motions until the response time has passed.Late-filed responses, however, may not be considered.

B. What’s In A Name? The title of your motion should be concise and

informative. However, you do not need, nor should youtry, to include every single detail of your request in thetitle of your motion. These are real titles of actualmotions received at SOAH:16

CITY OF GOLD REPLIES TO RESPONSESOF ABC COOPERATIVE, INC. TO CITY OFGOLD SUBSTITUTE AFFIDAVIT INSUPPORT OF MOTION FOR SUMMARYDECISION AND AMENDED MOTION TOPROFFER LATE-FILED EXHIBIT ANDSECOND MOTION FOR OFFICIAL NOTICE

ABC COOPERATIVE, INC.’S RESPONSESAND REPLIES TO THE “REPLY OF THECITY OF GOLD, TEXAS TO THERESPONSE OF ABC COOPERATIVE, INC.TO THE MOTION OF THE CITY OF GOLD,TEXAS FOR OFFICIAL NOTICE ANDRESPONSE TO THE MOTION OF ABCCOOPERATIVE, INC. FOR OFFICIALNOTICE”

Huh? What? Titles like these will only confuse thejudge. Your goal is to help the judge understand whatyou want, not cause the judge to scratch his head orworse, fall asleep before reading your motion. Your title

should be concise and clear; short and sweet. Rememberto mention (succinctly) in the title if you are requestinga hearing on your motion.

C. Who’s to Say?The ALJ is the person who will rule on your motion.

Sometimes, even when the other side agrees with you, theALJ may still disagree and decline to grant your motion.The other side does not have the authority to grant yourmotion by their acquiescence.

Unless you receive reliable word17 that the ALJ hasgranted a motion, you must assume that the motion hasnot been granted. That does not mean it will not begranted at some point, but it does mean that you arerequired to show up for hearing and be prepared toproceed as if the request has not been granted.

This is true even for motions to dismiss. If youaren’t sure of the status of a motion and you arewondering whether you need to appear for a hearing,please call the judge’s administrative assistant to getreliable word as to what’s happening. No news is notnecessarily good news in this situation as it means youneed to show up for hearing or face the possibility ofdismissal or default.

IV. PLEADINGSWhat exactly is a pleading? Is a motion a pleading?

Is a notice of hearing a pleading? Do all pleadings requirea response? These issues have formed the basis for somespirited and titillating water-cooler conversation atSOAH. How you come down on this hot-button issue isnot particularly important as long as you remember thatSOAH rules18 require all pleadings to include certaininformation and it is good practice to include thisinformation on all documents filed at SOAH, whereapplicable, no matter what you call the documentsthemselves.

The requirements for pleadings include (but are notlimited to):

• The SOAH docket number: This one sounds pettybut it is important. If you fail to include this numberon your filings, you have probably guaranteed adelay in the delivery of your document to the

15 An exception to this rule exists for responses tomotions for summary disposition, which must be filed within20 days of receipt of the motion.

16 The names have been changed to protect the identityof the verbose.

17 Reliable word is a written order from the judge orconfirmation from a SOAH administrative assistant that thejudge has issued a ruling on the motion. “I’m not going tooppose your motion so the judge will probably grant it,” is notreliable word that the motion has been granted.

18 1 TAC § 155.29.


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appropriate ALJ or worse.19 SOAH’s intake stafftrack and deliver documents according to the SOAHdocket number that appears on the documents.Please note that many referring agencies assign anduse their own docket numbers. Although you mayinclude the referring agency’s docket number on afiling, you must also use SOAH’s docket number sothat all documents may be properly tracked anddistributed.

• A clear statement of the type of relief, action, ororder desired by the pleader, and identification ofthe specific grounds supporting the reliefrequested:

In other words, please be clear about not only what youwant but also why you believe the facts and the lawentitle you to that relief. Without that information, it isvery difficult for an ALJ to decide what to do with yourrequest and, consequently, your request will likely bedenied.

• An indication of whether a hearing is needed onthe relief sought: Most pre and post hearing issuescan be determined without a hearing. However,some requests involve more complicated orextensive facts or argument. If you believe ahearing would be helpful to further articulate theissues, please include a request for hearing in thetitle and at the beginning of your pleading so wedon’t miss it.20 Please also let the ALJ know whenyou (and ideally the other parties) will be availablefor the hearing you requested. Often such hearingscan take place by telephone and can be set uprelatively quickly.

• Any other matter required by statute or rule:Administrative law is a complex creature and eachagency has its own morass of rules and statutes thatmust be followed. For the most part, once cases areat SOAH, the SOAH procedural rules apply – butnot without exception. Be sure to know youragency rules and how they fit in the big scheme. IfSOAH has adopted your agency’s procedural rulesand those rules require pleadings to includeadditional information, that information should beincluded as well.

• A certificate of conference: The certificate ofconference is very helpful to the ALJs. It lets us

know that you have spoken to the other side andwhat their position is regarding your request. Evenif a certificate of conference is not required by therules, if your pleading is a type that is subject todisagreement,21 please include a certificate ofconference so we know the respective positions ofthe parties. If you try but can’t reach the other side,include that in your certificate of conference so weknow that you made a good faith effort. We likethat.22

It is good practice to include the information required forgeneral pleadings on all documents filed at SOAH, to theextent possible.

A. Ch-Ch-Ch-Ch-Changes...Amended or supplemental pleadings23 must be in

writing and must be filed not later than ten days beforethe hearing unless the parties agree otherwise and thejudge consents or has established an alternate schedule.Amendments or supplements to pleadings that are merelytechnical in nature and would not subject other parties tounfair surprise need not comply with this ten day rule.

However, be forewarned: an ALJ may deem tendays notice as insufficient in cases that have been thesubject of extensive discovery or pre-hearing orders. Itis good practice to amend or supplement pleadingssufficiently in advance of the hearing to avoid a claim ofsurprise or unfairness to opposing counsel.

V. DEFAULT PROCEEDINGS: WHAT TO DOWHEN THE OTHER CHAIR IS EMPTY

A. What’s the big idea?The party without the burden of proof

(Respondent)24 is entitled to receive proper notice and tocontest the allegations and proposed penalties againsthim. However, if a Respondent receives proper notice ofthe hearing and fails to appear, then SOAH’s rules

19 Documents filed without the SOAH docket numbercould become lost in the bowels of bureaucracy from whichthey may never emerge.

20 Of course we read every word of every pleading verycarefully, but we are only human.

21 Any pleading that requests action or an order fromthe judge, as opposed to documents merely giving notice,should include a certificate of conference.

22 You may wish to use a standardized certificate ofconference form and simply attach it to the end of eachpleading or motion. An example of such a form may be foundin Appendix B.

23 1 TAC § 155.29.

24 Different agencies and different types of casesdesignate this party in different ways. In this paper,Respondent is intended to indicate the party against whom theaction is brought and who does not have the burden of proof.


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consider the failure a waiver of the right to contest theallegations made or penalties sought.

Where a properly-noticed Respondent fails to appearfor a hearing on the merits, therefore, SOAH’s rulesauthorize the ALJ to deem as admitted all factualallegations listed in the notice of hearing.

SOAH rules and the APA allow for proceedings tooccur in a party’s absence on a default basis if the absentparty does not have the burden of proof and receivedproper notice.25

Any default proceeding requires adequate proof that:

(1) proper notice, pursuant to SOAH rules and the APA,was provided to the defaulting party; and

(2) such notice included disclosure, in at least twelve-point bold-face type, that upon failure of theparty to appear at the hearing, the factualallegations in the notice could be deemedadmitted, and the relief sought in the notice ofhearing might be granted by default against thedefaulting party.26

However, it is important to remember that even properlyserved notice that satisfies due process and APArequirements and includes a proper default disclosure isnot necessarily sufficient to sustain a default.

B. First Things First - JurisdictionThe party seeking default must demonstrate that

proper jurisdiction exists by showing that the agency isauthorized to engage in proceedings against thedefaulting party in the first place. Ideally, jurisdictionwill be clearly shown from the notice of hearing and noadditional evidence will need to be presented.27

However, if the notice is not clear in this regard, evidenceof jurisdiction should be offered at the hearing.28

C. How’s the Service Here? - Proper Service ofNoticeThe rules require that proper notice be provided to

the absent party before a default proceeding may beinitiated. Therefore, the agency staff must prove that thenotice of hearing was properly served on the defaultingparty. But what constitutes proper service?

Although individual agencies vary greatly as torequirements for proper service, SOAH’s default rulesonly mention service by first class mail.

Where notice has been sent via certified mail, returnreceipt requested, service may be proved by theintroduction into evidence of the original notice ofhearing, the certificate of service, and the return receipt(commonly known as the “green card.”) The returnreceipt is offered to show that the document was receivedat the address to which it was sent. If the return receiptwas clearly signed by the Respondent, that typicallyconstitutes sufficient proof of service.29

Otherwise, a link must be established between theaddress to which the notice was sent and theRespondent.30 Let’s assume that Bob is the Respondentand he doesn’t appear at the hearing. However, thenotice that was sent to Bob did not include an addressthat anyone could reasonably show corresponded to alocation where Bob accepted mail. Under thosecircumstances, Bob could not be the subject of defaultproceedings for his failure to appear at the hearing.

The rule states that in any case where the agency isunable to show actual receipt by the defaulting party orthat party’s agent, default proceedings may only occurupon proof of the following:

(1) the referring agency’s statute or rules authorizeservice of the notice of hearing by sending it tothe party’s last known address as shown by thereferring agency’s records; and

(2) there is credible evidence that the notice ofhearing was sent by first class mail to the

25 1 TAC § 155.55 and TEX. GOV’T CODE §2001.056(4).

26 1 TAC § 155.55(b).

27 Please go back and read this sentence again. Taketime to absorb it. Live it. Please include facts to supportjurisdiction in your notice of hearing. For example,“Respondent holds license number 12345 issued on 5/5/55 byTexas XYZ Commission,” or “Respondent applied for awidget-making permit with Texas XYZ Commission on5/5/55.”

28 For example, a license, permit, application, etc. maybe offered to demonstrate that the non-appearing party isproperly subject to regulation by the agency involved and,therefore, the case is properly before SOAH.

29 A printed copy of the official internet tracking formshowing delivery to the proper address may also be offered.

30 For telephone hearings in which a party fails to beavailable at the telephone number listed for that party at thetime of the hearing, a link must be established between thetelephone number used and the unavailable Respondent. Thisis easiest to accomplish by including in the notice of hearing arequirement that Respondent submit in writing to SOAH andthe agency, in advance of the hearing, the telephone number atwhich he will be available and would like to be called for thehearing. A disclosure should also be included in the notice thatwarns a Respondent of the possibility of default if he isunavailable for the hearing at the telephone number heprovides.


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defaulting party’s last known address as shownon the referring agency’s records.31

If the nonappearing party is subject to regulation by theagency by virtue of an already-existing permit or license,then the agency is generally able to show how it arrivedat the last known address of record for the defaultingparty. Most agencies have a rule that requires thoseunder its auspices to keep the agency apprised of theircurrent mailing address.32 At the hearing, the agencyattorney should be prepared to present a copy of that rule.

Sometimes, however, the non-appearing party hasnot previously been subject to regulation by the agencyand therefore is not required to provide the agency witha current address. The most common examples aredisputes involving a new application or persons who arealleged to be engaging in a trade or profession withoutthe required license or permit. In those cases, it may bemore difficult to demonstrate that the address used waslogically linked to the non-appearing party. This link stillmust be established, however, before default may begranted, and may be accomplished by various means.

Introduction of any reasonably current documentauthored by the non-appearing party on which he lists hisaddress should suffice. Examples of such documentsinclude a letter requesting an administrative hearing thatreflects Respondent’s return address or an application forlicense or permit that was submitted by Respondent andreflects his address.

Alternatively, evidence that the non-appearing partywas served with notice personally by an investigator maybe offered as evidence that the notice was sent to the non-appearing party at the address listed on that party’sadvertisement.33

If the agency staff is unable to show proper serviceof notice, the case may be dismissed or continued toallow staff an additional opportunity to serve propernotice upon the defaulting party. The defaulting party

will then have an additional opportunity to appear on thenew hearing date to contest the case against him.

D. How Much Is Enough?When a properly noticed Respondent fails to appear,

the agency may move for default based on the factualallegations set forth in the notice of hearing. If the noticeof hearing includes the proper disclosure and wasproperly served, then the agency’s allegations may bedeemed true and may serve as the basis for a PFD or finalorder if authorized by law.

Thus, it is essential that the factual allegations in thenotice be sufficient to support the violations alleged orthe default will most likely not be granted.

A good way to determine how much factualinformation must be included in the notice to support adefault is to contemplate whether, if only the factsasserted in the notice are considered and deemed true,would they be sufficient to demonstrate that each rule orstatute referenced as an alleged violation in the noticewas in fact violated by Respondent? If the answer is no,then a request for default will be denied unless additionalfacts are added.

If an agency staff attorney elects to proceed on adefault basis, ideally only evidence of proper notice andsatisfactory service should be necessary since the noticeitself should contain the facts and legal authoritysufficient to demonstrate jurisdiction, all alleged facts, allalleged violations, and any requested sanctions.

Typically, no supplemental factual evidence beyondthe notice of hearing and any documents incorporatedwithin the notice will be accepted for defaultproceedings. Some agencies issue complaints or noticesof violation that are separate from the notice of hearing.That does not, however, negate the need to allegesufficient facts in the notice of hearing to support adefault although these other pleadings may be attached toand incorporated within the notice of hearing.34

In general, pursuant to a default proceeding,determination of violations is based only on the factual

31 1 TAC § 155.55(c)(1) and (2). Many agencies alsohave rules requiring those who fall under that agency’sregulatory authority to keep the agency apprised of their currentmailing address. Where such rules exist, it is helpful makemention of them on the record to further establish the rationalefor using the mailing address to which notice was sent.

32 Morris v. State, 894 S.W.2d 22, 24 (Tex. App.-Austin 1995, writ dism’d w.o.j.) (When a licensee is requiredby statute or rule to maintain a current address with thelicensing agency, sending notice to that address is sufficient toestablish service).

33 The advertisement must be shown to be linked to thenon-appearing party or this evidence will not suffice.

34 Please note that it is good practice to physicallyattach any incorporated documents to the document in whichthey are being incorporated. It is bad practice to incorporate adocument simply by making reference to the fact that theincorporated document was sent sometime earlier.

Moreover, it is bad practice and arguably improper in thecontext of a default proceeding, to attach and incorporatemultiple exhibits and attachments to the notice of hearing as thefactual basis for the case. Frequently investigator’s reports andsimilar documents contain discrepancies that cannot bereconciled in order to establish accurate findings of fact. Themuch better practice is to include all necessary and relevantfacts in the pleadings themselves.



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allegations set forth in the notice of hearing, which aredeemed admitted in Respondent’s absence. If the agencyattorney has concerns about the sufficiency of the noticeof hearing as the sole basis for a default proceeding, thestaff attorney may choose to present its evidentiary caseand request a full PFD in lieu of short-form default PFD,even where the Respondent fails to appear. In that case,however, the allegations in the notice will usually not bedeemed admitted and must be proved by admittedevidence just as if the Respondent had appeared.

E. Does the Punishment Fit the Crime?35

In a default proceeding, once the agency attorneyhas shown that notice was properly served and the noticecontains facts necessary to substantiate the violationalleged, is the agency attorney required to presentevidence to justify the sanction or penalty being sought?SOAH rules do not address this issue specifically andthere is some difference of opinion among the judgesregarding the answer to this question.

The best practice, therefore, is to include in thenotice of hearing some factual allegations and legalauthority to support both the legality and propriety of thesanctions requested. Alternatively, agency staff shouldbe prepared to offer evidence to show that the factsalleged support the relief requested, particularly whereadministrative penalties are sought.36 This may be doneseveral different ways including but not limited to: (1)presentation of testimony from the agency’s director ofenforcement or investigator regarding the agency’spolicies and reasons underlying the requested sanction inlight of the particular facts involved; (2) introduction of

the agency’s penalty matrix as promulgated in the TexasRegister; (3) introduction of any agency rules thatenumerate factors to be considered in assessing sanctions;or (4) evidence regarding the sanction criteria found inagency rules or statute.

Understand, however, that the judge hearing yourcase may require this evidence and deny your requestedsanction without it or, alternatively, the judge maybelieve that such evidence is not necessary and limit yourability to present it. Either way, to the extent possiblewith available resources, the best practice, as the BoyScouts always say, is to “be prepared.” Or, as my momalways says, “better to have it and not need it, than needit and not have it.”

F. Default or Dismiss?Default is appropriate only where the absent

party does NOT have the burden of proof. Where theparty seeking affirmative relief37 fails to appear for anyhearing or prehearing conference for which the non-appearing party had notice, the case may be dismissed forfailure to prosecute a claim pursuant to SOAH rules.38

VI. SUMMARY DISPOSITION A. Hearing? We don’t need no stinking hearing!

Under SOAH’s rules, cases may be resolved inwhole or in part without an evidentiary hearing via thesummary disposition process.39 The rule authorizes theALJ to issue a proposal for decision in response to amotion for summary disposition or after notifying theparties of the ALJ’s intent to summarily dispose of thecase, if the record shows that a party is entitled to adecision in its favor as a matter of law.

Historically, summary disposition has beeninfrequently used. However, it appears (anecdotally) thatthe use of summary disposition is growing at SOAH.When you have a case before SOAH, we stronglyencourage you to review it to determine whether it isappropriate for summary disposition and, if so, to use theprocess. Often, parties agree about all or most of thefacts in a case but disagree only about the law as itapplies to the facts. In such cases, the summarydisposition process can be a great time and money saver

35 Really, in the case of administrative law, we aredealing with violations, not crimes, but that didn’t make for avery catchy title.

36 Although not clearly applicable to the imposition ofadministrative sanctions via default, cases concerningunliquidated damages in the context of civil default judgmentsmay be instructive. See, e.g. Atwood v. B&R Sup. & Equip.Co., 52 S.W. 3d 265, 268 (Tex.App.-Corpus Christi 2001, nopet.) (“Unliquidated damages” are damages that cannot beaccurately calculated from (1) t he factual (as opposed toconclusory) allegations in the petition or (2) attachedinstruments); Holt Atherton Indus v. Heine, 835 S.W.2d 80, 83(Tex. 1992) (When damages are unliquidated, the court mustreceive evidence on damages before the court can render a finaldefault judgment); Morgan v. Compugraphic Corp. 675S.W.2d 729, 732 (Tex. 1984) (When damages are unliquidated,the plaintiff must present evidence of the causal nexus betweenthe event sued upon and the plaintiff’s injuries. By the default,the defendant admits only that it caused the event that led to thesuit, not that there is a connection between the event and thedamages. Thus, a plaintiff must both offer proof of its damagesand connect its damages to the defendant’s conduct).

37 This generally corresponds to the party with theburden of proof.

38 1 TAC § 155.56. For a helpful checklist of issuesregarding default proceedings, please see Appendix C. Thischecklist was compiled by and is used with the permission ofJudge Paul Keeper.

39 1 TAC § 155.57. For examples of various summarydisposition orders, see Appendix _______.






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in that it eliminates the need to present evidence on issuesthat are not in dispute.40

It is worth noting that where some facts are not indispute but others are, partial summary disposition maybe a viable option that is worth pursuing. An example ofsuch a case might be where the issue of liability may beclearly established, whether by stipulation or byuncontroverted evidence, and only the amount ofdamages remains in contest.

B. Follow the Yellow Brick RoadIf you are going to move for summary disposition,

though, make sure you follow SOAH’s rules! A motionfor summary disposition shall state the specific groundsthat would entitle the party to the relief requested. Aparty may make a summary disposition motion with orwithout affidavits, but must set forth all undisputedfacts with a reference to the supporting evidence.Failure to comply with this may result in denial of themotion.41

Any opposition to a motion for summary dispositionmust be filed within 20 days of the receipt of the motion.The opposing response must set forth a separatestatement in response to each of the material facts setforth in the motion as undisputed indicating whether theopposing party agrees or not that each fact is undisputed.The opposing party should also indicate in its responseany other material disputed facts with a reference to thesupporting evidence.42

SOAH rules allow reliance on discovery productsnot on file to support or oppose a motion for summarydisposition as long as copies of the documents reliedupon are filed with the motion or response and served onall parties.43

C. Live by the Sword, Die by the SwordBe careful what you wish for. If you file a motion

for summary disposition, claiming that only legal issuesremain, then the judge may agree with you but still denyyour motion. How, you ask? The judge may determinethat the legal issues favor the opposing party. In such asituation, the judge may, in fact, grant summarydisposition to the opposing party. Don’t laugh – it hashappened!

In a particular agency enforcement action, the factswere undisputed. The agency moved for summarydisposition, claiming the respondent’s actions clearlyviolated a particular statute. Upon review, the judgesagreed that all relevant facts were undisputed, but foundthat the respondent’s conduct did not violate the statutein question. Therefore, the judges granted summarydisposition to the respondent.

D. Can you hear me now? Hearings are not normally conducted on summary

disposition motions, but a hearing may be requested fororal argument if you believe it will be helpful to clarifythe issues for the judge. If you do want a hearing, ask forit in the motion.

E. One Final Note about Summary Disposition:Don’t move for summary disposition unless you

legitimately and reasonably believe that there are nogenuine issues of material fact in dispute!!!! Otherwise,you will just be wasting your resources and time, and thejudge’s time. No one likes to have their time wasted.

VII. LET’S GO SURFING NOWThe worldwide web is a strange and magical thing.

In addition to the stupefying variety of crazy, irrelevant,and often inaccurate material available on the web, thereis also an amazing amount of helpful informationavailable online to help you navigate the complicatedmaze that is administrative law.

Be sure to check out SOAH’s website44 for all kindsof information including answers to commonly askedquestions, searchable issued pfds, SOAH’s rules, officelocations, and links to relevant law.

Additionally, many agencies maintain websites thatcontain their rules and statutes and other useful tidbitsabout how they operate. It has never been easier toaccess this information and we encourage you to do so.

40 Parties are always encouraged to use stipulationswhen they do not disagree about facts, even if such stipulationsdo not resolve any contested issues, but simply reduce theevidence to be presented at the hearing. To be clear, though,summary disposition is appropriate only when it is shown thatthere is no genuine issue of material fact on one of thecontested issues in the case. Stipulations, then, reduce the needfor evidence at the hearing but do not necessarily resolve acontested issue, whereas summary disposition will actuallyresolve a contested issue, thus removing it from dispute at thehearing or eliminating the need for a hearing entirely.

41 1 TAC § 155.57(b).

42 1 TAC § 155.57(c).

43 1 TAC § 155.57(d). 44 www.soah.state.tx.us

APPENDIX A

APPENDIX ARequirements for Specific Type of Motions:*

* Where SOAH rules do not set forth a specific requirement in a certain area, those areas are left blank and the general motionrequirements should be used. Be sure to consult agency rules as well, particularly TCEQ, PUC, and ERS, as they may vary fromSOAH’s rules regarding motions.

Also note that SOAH’s rule regarding computation of time excludes weekends from the calculation of filing deadlines that are 5 daysor less. 1 TAC § 155.19(a).

Motion Type Filing Deadline Response Deadline Requirements

Motions In General 7 days before hearing 5 days after receipt or athearing, whichever isearlier

! describe relief soughtand basis in law therefor. ! include proposed datesif seeking new deadline orsetting! certificate of service! certificate of conference

Motion to Intervene or forParty Status

20 days before hearing 7 days before served orreceived

See general above

Motion for Continuance 5 days before hearingunless good cause shown(note special servicerequirements for late-filedmotions 1 TAC §155.30(f))

3 days after receipt or athearing, whichever isearlier

In addition to generalrequirements above:! specifically refer to allprior-filed motions forcontinuance by movant! specifically set forthgrounds for continuance

Motion to CompelDiscovery

within 10 days of receiptof the pertinent objectionor alleged failure tocomply

! certificate of conferenceaverring parties negotiatedin good faith and wereunable to resolve dispute;or !succinctly describingunsuccessful attempts toconfer

Request for Interpreter at least 7 days before thesetting

Motion for TelephoneAppearance or Testimony

! reason(s) for request! pertinent telephonenumbers! affirmation thatproposed witness will besame person who appearstelephonically at hearing155.45(a)NOTE: documentaryevidence must be servedon all parties and filed atSOAH at least 3 daysbefore hearing.155.45(e).

Motion to appear by videoconference

! reasons for request! city of residence ofparty or witness 155.45(b) NOTE: documentaryevidence must be servedon all parties and filed atSOAH at least 3 daysbefore hearing. 155.45(e)

Motion for SummaryDisposition

within 20 days of receipt(must include separatestatement responding toeach material fact allegedto be undisputedindicating opposingparty’s position andreferring to supportingevidence for each materialfact opposing party claimsto be disputed.

! specific grounds formotion! with or withoutsupporting affidavits! a separate statement ofall material facts allegedto be undisputed withreference to thesupporting evidence

APPENDIX B

APPENDIX C

APPENDIX D