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RULE §9.4314Administrative Law Judge's Powers

(a) The Administrative Law Judge (ALJ) shall conduct a protest hearing in a manner insuring fairness, the reliability of evidence, and the timely completion of the hearing. The ALJ shall have the authority necessary to receive and consider evidence as provided under this subchapter and propose decisions only on the issues referred by the comptroller.

(b) The comptroller has the burden to prove the accuracy of comptroller's findings under Government Code, §403.302(g) or (h).

(c) The ALJ's authority includes, but is not limited to, the following:

  (1) rule on motions and the admissibility of evidence;

  (2) join related protests for hearing;

  (3) conduct a single hearing that provides for:

    (A) participation by the affected school district(s) and any eligible property owner that has filed a valid and timely petition, if the hearing concerns the comptroller's preliminary findings under Government Code, §403.302(g); or

    (B) participation by the affected school district(s), and the commissioner of education, and any eligible property owner that has filed a valid and timely petition, if the hearing concerns the findings of an audit of a school district's taxable property value conducted pursuant to Government Code, §403.302(h);

  (4) conduct oral hearings in an orderly manner and expel from any proceeding any individuals who, after an appropriate warning, fail to comport themselves in a manner befitting the proceeding and continue with the proceeding, hear evidence, and render a decision on the protest;

  (5) administer oaths to all persons presenting testimony;

  (6) examine witnesses and comment on the evidence;

  (7) ensure that evidence, argument, and testimony are introduced and presented expeditiously;

  (8) refuse to hear arguments that are repetitious, not confined to issues referred to State Office of Administrative Hearings (SOAH) by the comptroller pursuant to this subchapter, not related to the evidence, or that constitute mere personal criticism;

  (9) accept and note any petitioner's waiver of any right granted by this subchapter;

  (10) limit each oral hearing to two hours for presentation of evidence and argument or extend the two-hour time limit in the interest of a full and fair hearing; and

  (11) exercise any other powers necessary or convenient to carry out the ALJ's responsibilities and to ensure timely certification of changes in preliminary findings to the commissioner of education.

(d) The ALJ shall take official notice of the written policies and procedures of the comptroller pertaining to the property value study.

(e) The ALJ may entertain motions for dismissal at any time as requested by the comptroller. Grounds for dismissal shall include, but are not limited to, the following:

  (1) failure to prosecute;

  (2) unnecessary duplication of proceedings or res judicata;

  (3) withdrawal of protest;

  (4) moot questions or obsolete petition; or

  (5) the comptroller has certified amended preliminary findings pursuant to this subchapter.

(f) The ALJ may grant a request to postpone an oral protest hearing if good cause is shown and doing so would not prevent timely certification of changes in preliminary findings to the commissioner of education. A request to postpone must be in writing, show good cause for the postponement, and be delivered five calendar days before the date the protest hearing is scheduled to begin. Good cause does not include a claim that the time periods established in this subchapter are too short to meet the deadline. If requested in writing by the petitioner and for good cause shown, the ALJ may waive the requirement that the request for postponement be made five calendar days in advance of the deadline.

(g) Except as otherwise provided in this subchapter, the ALJ in a protest may not communicate outside a protest hearing, directly or indirectly, with any agency, person, petitioner, or petitioner's agent regarding any issue of fact or law relating to the protest unless all parties in the protest have notice and opportunity to participate.

Source Note: The provisions of this §9.4314 adopted to be effective January 26, 2011, 36 TexReg 268

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