State Office of Administrative Hearings
State Office of Administrative Hearings
 

Frequently Asked Questions

The Hearing

The Hearing Questions

How does a hearing proceed?

The people that attend the hearing are the ALJ, the parties and their attorneys, the witnesses, and perhaps a court reporter.  Most hearings are open to the public, so there may be people present who are not associated with the dispute.  Hearings can last anywhere from a few minutes to an entire week or longer, depending on the subject of the hearing.  The hearing procedure will have most of the following elements, although it will vary depending on the hearing.  The hearing may be more compressed or more complex depending on the nature of the case and the number of parties.

  • Opening statement - Each party may explain its position in the case, briefly outlining what it will prove.  The opening statement is not evidence.  The party with the burden of proof will be asked to make its opening first and the other party will follow.  An opening statement is not necessary or required but it is helpful to the ALJ in order to understand your position.
  • Presentation of evidence - In most cases, the party requesting action has the burden of proof and must show by evidence (testimony, documents, etc.) it is entitled to that relief.  Usually, this party presents its evidence first, followed by the other party or parties.
  • Witnesses - Each party may call witnesses, who are placed under oath.  Witnesses first answer questions from the party who called them and then may be cross-examined by opposing parties.  In some circumstances, witnesses may be required to wait outside the hearing room until they are called to testify.
  • Exhibits - If a party intends to offer a document into evidence, the party must provide a copy for the ALJ, a copy for each other party, and a copy for itself.  The person who prepared the document may need to testify about it before it can be admitted as evidence.  If the author of a document is not present to testify, the document may be considered hearsay and may not be admitted into evidence.  Letters to the ALJ or the referring agency are not evidence unless offered by one of the parties and admitted.
  • Objections - Any party may object to questions, testimony, or exhibits.  An objection must have a legal reason.  The ALJ will either “sustain” the objection (excluding the testimony or exhibit from the record) or “overrule” the objection (admitting the evidence into the record).
  • Closing statement - Each party may summarize what the evidence shows and argue why the ALJ should recommend a decision in that party’s favor.  The closing statement is not evidence.  It may be either written or oral.  If it is written, it may include any posthearing briefing ordered by the ALJ.
What is the burden of proof?

The burden of proof in administrative hearings is the civil standard "by a preponderance of the evidence." This means that a proposition is more likely than not.  The burden of proof in administrative hearings is never the criminal standard of "beyond a reasonable doubt."

Does the referring agency have the burden of proof or do I?

Generally, the party that refers the case to SOAH must meet its burden of proof to prevail.  However, in some cases, if the private party or entity is challenging an action by an agency, it will have the burden of proof.  In cases where it may not be clear who has the burden of proof, the ALJ can assign the burden based on the circumstances of the case.  See 1 Tex. Admin. Code §155.41 external web site.

What happens if I don’t attend the hearing, or don’t participate in the proceedings?

If you are the party that does not have the burden of proof in the hearing and you don’t attend the hearing, a default may be entered against you if the evidence indicates that you were provided with adequate notice of the hearing.  A default means that all allegations of fact made against you in the notice of hearing are deemed to be true, and the party that alleged these facts against you will not have to submit any additional proof.  If a default is warranted, the PFD will likely recommend that the sanction sought against you be imposed by the referring agency.  See 1 Tex. Admin. Code §155.55 external web site.

If you are either the party with the burden of proof in the proceeding or the party requesting affirmative relief, and you don’t appear at the hearing, the other party may be entitled to move for dismissal of the case for failure to prosecute.  See 1 Tex. Admin. Code §155.56 external web site.

May I bring a witness to the hearing?

You may bring one or more witnesses to testify on your behalf.  If the ALJ has entered any prehearing orders in your case, the prehearing order may require the parties to exchange the names of their witnesses and to outline the witnesses’ testimony in advance of the hearing so that the parties can prepare.

May I bring documents as evidence?

Yes.  Be sure to bring copies for the judge and all other parties.  The ALJ may have entered a prehearing order requiring the parties to list or exchange the exhibits they intend to offer into evidence at the hearing on a specified date before the scheduled hearing date.

What should I wear to the hearing?

There is no dress code for hearings at SOAH, but because hearings concern substantial legal rights and interests, we request that you respect the occasion and the tribunal by dressing appropriately.  Many people choose to wear suits or other business attire to hearings, but you do not need to buy business clothing if you do not already have it.  Attorneys are always expected to dress in business attire.

How should I address the ALJ at my hearing?

You should address the ALJ as "Your Honor" or "Judge."

What if I have an emergency at the last minute and cannot attend the hearing?

If you have an emergency, call SOAH’s Docketing Division at 512-475-3445, if possible, and explain the situation.  One of the docket clerks will notify the ALJ that you are unable to attend the hearing.  It is important to notify SOAH of your emergency as soon as you can so that the ALJ can take appropriate action, if necessary.

How will the testimony be recorded?

The testimony will be recorded via tape recorder or by a court reporter.  SOAH does not provide a court reporter.  See 1 Tex. Admin. Code §155.43 external web site.

How do I get a copy of the hearing testimony?

If a court reporter recorded the hearing, you may request that he or she prepare a transcript and provide you a copy.  The cost of the transcript is the responsibility of the party making the request.  However, parties may agree to share the cost of the transcript.  If the testimony was recorded on tape, you should file a written request with SOAH for a copy of the hearing tape.  Cost is $1.00 per tape.

Will the ALJ make a decision on my case at the hearing?

No.  In most cases, after the hearing record is complete, the ALJ will send all the parties either a Proposal for Decision (PFD) or a final Decision and Order based on the evidence admitted at the hearing.

What is a Proposal for Decision?

A PFD is a written document that contains the ALJ’s discussion of the evidence and issues, findings of fact and conclusions of law, and a recommendation of a specific outcome to the ultimate decision maker of the referring agency, such as a board or commission.  See 1 Tex. Admin. Code §155.59 external web site.

In what cases does the ALJ issue a Decision and Order?

In Administrative License Revocation hearings, Texas Department of Insurance Division of Workers’ Compensation hearings, Department of Family and Protective Services hearings, and the Office of the Attorney General’s Title IV-D child support hearings, the SOAH ALJ makes the final decision and issues the final written Decision and Order.

Will I have to pay for my hearing?

In most instances, you will not have to pay for your hearing.  Please note, however, that if you retain an attorney to represent you, you are responsible for paying her fees.  Also, if you want a copy of a tape or transcript of your hearing, you will be responsible for paying those costs.  Finally, some referring agencies have the authority to assess the costs of the hearing against the losing party, but you should check the particular agency’s statute to determine if it has that authority.