Section 1.38 - Interim Rulings and Appeals of Interim Rulings(a) Relief through interim ruling. Prior to presentation of a contested case to the Commission at an open meeting, a party may seek, through an examiner, or Hearings Director, as appropriate, relief through interim ruling, but that ruling shall not be considered of the same nature as a final decision. An interim ruling shall not be subject to exceptions or motions for rehearing. For purposes of this section, the term interim ruling includes orders issued pursuant to § 1.55 of this title (relating to Discovery Orders) and final actions taken by Commission staff to deny an application or other requested relief for which no other avenue of appeal is provided by Commission rules.(b) Evidentiary rulings. An evidentiary ruling by an examiner is not an interim ruling and is not appealable to the Commission pending the issuance by the examiner of a proposal for decision. Such rulings include, but are not limited to, reopening the record of a hearing for additional evidence, before a proposal for decision is issued.(c) Interim ruling to suspend license. (1) In this section, "license" includes the whole or a part of a Commission permit, certificate, approval, registration, or similar form of permission required by law.(2) When an interim ruling suspends a license because an imminent peril to the public health, safety, or welfare requires emergency action, the examiner or Hearings Director shall incorporate a factual and legal basis establishing that imminent peril in the interim ruling.(3) Unless expressly provided otherwise by statute, the Commission shall initiate the proceedings for revocation of the license or other action not later than the 30th day after the interim ruling is signed.(d) Appeal of interim ruling. (1) Except as provided in paragraph (2) of this subsection, any party aggrieved by an interim ruling may appeal that ruling to the Commission and seek a stay if the party files a written appeal within 10 days of the date the interim ruling is signed or stated in the record. Untimely appeals shall not be forwarded by examiners to the Commissioners, pursuant to subsection (e) of this section. If, by the 46th day after the date the interim ruling is signed or stated in the record, the Commission has not signed a written order ruling on the appeal, then the appeal shall be deemed denied and any granted stay is lifted.(2) In all gas utility proceedings brought or conducted under Texas Utilities Code, Chapters 102, 103, 104, and 121, any party aggrieved by an interim ruling may appeal that ruling to the Commission and seek a stay if the party files a written appeal within five days of the date the interim ruling is signed or stated in the record. Untimely appeals shall not be forwarded by examiners to the Commissioners, pursuant to subsection (e) of this section. If, by the 20th day after the date the interim ruling is signed or stated in the record, the Commission has not signed a written order ruling on the appeal, then the appeal shall be deemed denied and any granted stay is lifted.(3) In all proceedings, the appealing party shall serve the appeal in accordance with § RSA 1.45 of this title (relating to Service in Protested Contested Cases) on the same day the appeal is filed with the Docket Services Section.(4) Any response to an appeal must be filed with the Docket Services Section and served in accordance with § RSA 1.45 of this title within 10 days of the date the appeal of the interim ruling was filed.(5) Pending action on the appeal of the interim ruling, the Hearings Director or the examiner may issue a stay of the interim ruling.(e) Procedure on appeal. The Commissioners may consider and rule on an appeal on or after the day following the day the response to the appeal is due. An order on an appeal from an interim ruling shall not be subject to motions for rehearing pending issuance of the proposal for decision and signing of the final order. Any issue in an appeal that has been deemed denied by operation of law may be raised again in exceptions to the proposal for decision. When a timely appeal is filed under this section, the examiner shall: (1) forward to each Commissioner a copy of the appeal along with a cover memorandum showing the date the appeal was filed, the date replies are due, and the date on which the appeal will be deemed denied if no Commission action is taken;(2) forward to each Commissioner a copy of all replies to appeals of interim rulings which may be filed, and of any stay of the interim ruling granted by the Hearings Director; and(3) upon the request of any one Commissioner, immediately schedule the appeal for consideration by the Commission at an open meeting, and cause proper notice to be given to all parties.16 Tex. Admin. Code § 1.38
Adopted by Texas Register, Volume 42, Number 33, August 18, 2017, TexReg 4135, eff. 8/21/2017