Section 70.104 - Notice of Executive Director's Preliminary Report(a) General requirements. Not later than the 10th day after the date on which the EDPR is issued, the executive director shall give written notice of the EDPR to the respondent. The EDPR is considered issued when it is filed with the office of the chief clerk. Notice shall consist of a copy of the EDPR, a statement of the amount of the penalty recommended, if any, and a statement of the right of the respondent to a hearing on the occurrence of the violation, the amount of the penalty, or both.(b) Timeliness and method of service. Notice shall be timely served if: (1) sent to the respondent by registered or certified mail, return receipt requested, no later than the 10th day after the date on which the EDPR is issued; or(2) delivered to the respondent in person, with the date of delivery endorsed thereon, no later than the 10th day after the date on which the EDPR is issued.(c) Additional methods of service. Where the executive director has been unable to deliver notice to the respondent through reasonable attempts to serve respondent by the methods described in subsection (b) of this section, notice may be effected by: (1) publishing in a newspaper of general circulation in the county of the last known business or residential address of the respondent, for a period of seven consecutive days, the following: (A) the name of the person charged;(B) a brief summary of the charges;(C) a statement of the amount of the penalty recommended, if any;(D) a statement that injunctive or remedial relief is sought; and(E) a statement of the right of the person charged to a hearing on the occurrence of the violation, the amount of the penalty, or both;(2) mailing the EDPR by both certified mail, return receipt requested, and by first class mail, postage prepaid simultaneously. When the executive director gives the respondent notice of the EDPR to the respondent's last known address in the manner provided by this paragraph, timely service will be presumed if the certified mail is returned to the executive director as unclaimed by the postal service, and the first class mail is not similarly returned; or(3) sending the EDPR by telephonic document transfer or facsimile not later than the tenth day after the date on which the EDPR is issued, at or before 5:00 p.m. local time for the respondent. Service by telephonic document transfer after 5:00 p.m. local time of the respondent shall be deemed service on the following day.(d) Proof of notice. Where proof of notice of the EDPR or petition is relevant, such as at a hearing for default judgment, a certificate by a party or an attorney of record or the affidavit of any person showing service of a notice shall be prima facie evidence of the fact of service. In addition, the executive director may offer live testimony as well as such other documentary evidence as permitted by the presiding officer, showing that the notice has been perfected. Nothing herein shall preclude any party from offering proof that the notice was not received, or if service was by mail, that it was not received within three days from the date of deposit in a post office or official depository under the care and custody of the United States Postal Service, and upon so finding, the presiding officer may extend the time for taking the action required of such party or grant such other relief as it deems just.30 Tex. Admin. Code § 70.104
The provisions of this §70.104 adopted to be effective June 6, 1996, 21 TexReg 4753; amended to be effective July 7, 1999, 24 TexReg 5017