Section 730.1713 - Prehearing Procedure(a) Prehearing conference. On the motion of the petitioner or the respondent or on his own motion, the administrative law judge may direct the parties and their attorneys or representatives to appear before him at a specified time and place for a conference before the hearing, to formulate issues and to consider: (1) the possibility of making admissions of certain averments of facts or stipulations to avoid the unnecessary introduction of proof;(2) the simplification of issues;(3) the procedure at the hearing;(4) the limitation, when possible, of the number of witnesses; and(5) other matters that may help to simplify the proceedings and the disposition of the case, including settlement of issues that are in dispute.(b) Discovery and production of documents and things for inspection, copying, or photographing. In all discovery matters not specifically governed by this subchapter, the Texas Rules of Civil Procedure are followed. Upon the timely motion of any party and notice to all other parties and subject to such limitations of the kind provided for discovery under the Texas Rules of Civil Procedure, the administrative law judge may order any party to produce and permit the inspection and copying or photographing by or on behalf of the moving party any of the following that are in his possession, custody, or control: designated documents, papers, books, accounts, letters, videotapes, photographs, objects, or tangible things, not privileged, that constitute or contain or are reasonably calculated to lead to the discovery of evidence that is material to any matter involved in the action. The administrative law judge may further order any party to permit entry upon designated land or other property in that party's possession or control for the purpose of inspecting, measuring, surveying, or photographing the property or any designated object or operation on the property that may be material to any matter involved in the action. (1) The order must specify the time, place, and manner of making the inspection, measurement, or survey and taking the copies and photographs and may prescribe terms and conditions that are just.(2) The identity and location of any potential party or witness may be obtained from any communication or other paper in a party's possession, custody, or control; any party may be required to produce and permit reports, including factual observations and opinions of an expert called as a witness, to be inspected and copied. The rights granted in this subsection may not extend to other written statements of witnesses or other written communications passing between agents or representatives or the employees of any party to the suit or to other communications between any party and his agents, representatives, or other employees, if they are made after the occurrence or transaction upon which the appeal is based and made in connection with the prosecution, investigation, or defense of this claim or the circumstances out of which the claim arose.(3) Any person, whether or not a party, is entitled to obtain, upon request, a copy of any statement he has previously made concerning the action or its subject matter. If his request is refused, he may move for an order according to this subsection. For the purpose of this subsection, a statement previously made is either: (A) a written statement signed or otherwise adopted or approved by the person making it; or(B) a stenographic, mechanical, electrical, videotape, or other recording or a transcription of the same statement, which is a substantially verbatim recital of an oral statement by the person making it and contemporaneously recorded.(c) Nonparty discovery. The administrative law judge may order a person, organizational entity, governmental agency, or corporation not a party to the hearing to produce according to this subsection. He may make this order only after a motion has been filed specifically stating the request and necessity for it. All parties and those who are not parties must have the opportunity to object in writing to the motion. At his own discretion, the administrative law judge may hold a hearing on the motion.(d) Admission of facts and of genuineness of documents. Any time after the department has acknowledged in writing a petitioner's request for a hearing, a party may deliver or have delivered to any other party a written request for admission of facts and genuineness of documents. The provisions of the Rules of Civil Procedure, Rule 169, apply, except that filing and enforcing are controlled by the administrative law judge and that the time limit to respond is 25 (not 30) days.(e) Interrogatories to parties. Any time after the department has acknowledged a petitioner's request for a hearing, any party may serve interrogatories upon any other party. The provisions of the Rules of Civil Procedure, Rule 168, apply except that filing and enforcing are controlled by the administrative law judge and the number of questions is limited to no more than 25 answers.(f) Depositions to perpetuate testimony. (1) Request. When the Texas Department of Protective and Regulatory Services (PRS) expects to initiate an adverse proceeding, that is a proceeding which may result in adverse action, and PRS desires to preserve the testimony of any witness so that the testimony may be used in the adverse proceeding or in an appeal from that proceeding, PRS's representative may file a request with the Hearings Department to take the deposition of the witness. The request must include: (A) a statement that PRS expects to initiate an adverse proceeding as the result of an investigation being made;(B) a short statement of the subject matter of the investigation;(C) the names and residences, if known, or a description of the persons whose interest in the matter is expected to be adverse to PRS;(D) the names and addresses of the persons to be deposed and PRS's reasons for desiring to perpetuate the testimony; and(E) a request for an order from the Hearings Department authorizing the taking of the deposition.(2) Order. If satisfied that the perpetuation of testimony may prevent a failure or delay of justice, the administrative law judge will make an order authorizing the taking of the deposition and will state whether the deposition will be taken upon oral examination or written questions. The time and place at which the depositions are to be taken may be stated in the order or by means of notice as provided for depositions generally. The taking, signing, returning, objections to, and use of the depositions are subject to the deposition rules in the Texas Rules of Civil Procedure, provided that those rules are consistent with this section.40 Tex. Admin. Code § 730.1713
The provisions of this §730.1713 adopted to be effective January 1, 1990, 14 TexReg 5937; amended to be effective January 1, 1992, 16 TexReg 6764; duplicated effective September 1, 1992, as published in the Texas Register September 11, 1992, 17 TexReg 6279.