Discovery and Your Administrative Hearing

When you receive a complaint against your professional license from your licensing board, you must go through certain processes to address the complaint. First, many licensing boards or agencies hold informal conferences to try and settle complaints by reaching agreements with professionals concerning alleged violations of applicable rules or laws. However, if a professional is unable to come to an agreement to resolve the matter, the complaint may go to the State Office of Administrative Hearings (SOAHA) to schedule a contested administrative hearing.

A major part of pre-hearing procedures at SOAH is the exchange of information known as the discovery process. Discovery allows both sides to a legal dispute to get information and evidence from one another to properly prepare for the hearing. An experienced license defense lawyer can help you navigate the discovery process before your administrative hearing.

General Provisions About Discovery at SOAH

In most court cases, Rules 190 – 215 of the Texas Rules of Civil Procedure (TRCP) govern the discovery process. The Administrative Procedure Act (APA) also applies to discovery in administrative hearings before state agencies. However, 22 Tex. Admin. Code § 155 contains the rules and procedures concerning discovery in cases before SOAH; some of these rules modify the TRCP discovery provisions. The administrative law judge (ALJ) assigned to a case also can modify or change the parties’ discovery rights and determine what discovery is permissible in cases not covered by the APA.

Generally, under 22 Tex. Admin. Code § 155.251, discovery can begin as soon as SOAH takes jurisdiction over a case. However, the parties must complete discovery at least ten days before the contested hearing unless otherwise agreed to by the parties or ordered by the judge. They also must send any written requests for discovery at least 30 days before a scheduled hearing and respond to such requests within 30 days of receipt, unless otherwise agreed to or ordered by the judge.

Types of Discovery in SOAH Cases

Parties can engage in different types of discovery under the TRCP and SOAH procedural rules. These types of discovery include depositions and written discovery.

Depositions

22 Tex. Admin. Code § 155.253 states that the APA governs depositions in SOAH proceedings. Furthermore, except with the ALJ’s permission upon a showing of good cause, or an agreement by the parties, the parties must abide by the following rules concerning depositions:

  • All parties must receive at least seven days’ notice of a deposition.
  • Parties must try to reasonably confer on a date, time, and location for a deposition.
  • Neither party may examine or cross-examine a single witness for more than six hours.
  • Brief breaks during the deposition do not count toward the six-hour limitation on examination and cross-examination.

Written Discovery

22 Tex. Admin. Code §155.255 limits the types of written discovery parties can use in a case before the SOAH. These limitations include:

  • No more than 25 written requests for production of documents;
  • No more than 25 written interrogatories or questions for the party to answer, excluding those asking a party only to identify or authenticate certain documents; and
  • No more than 25 requests for admissions or statements that a witness must admit or deny; however, requests for admissions in these proceedings are limited to jurisdictional facts or the genuineness of any documents served with the requests.

A party also can make specific requests for disclosure under this rule. Generally, a party can request documents or information that the opposing party has in their possession, custody, or control, including:

  • Correct names of the parties, as well as names, addresses, and telephone numbers of any potential parties;
  • A general description of the legal theories and the factual bases of the responding party’s claims or defenses, if not already outlined in a pleading or document filed in the record of the proceeding at SOAH;
  • the name, address, and telephone number of persons knowing relevant facts, and a brief statement of each identified person’s connection with the case;
  • the statement of any person with knowledge of relevant facts (witness statement) regardless of when made; and
  • a copy, or description by category and location, of all documents, electronic information, and tangible items that the disclosing party has in its possession, custody or control and may use to support its claims or defenses unless the use would be solely for impeachment. A request for disclosure made under this subsection is not considered a request for production.

The parties also must make some disclosures about any testifying expert witnesses in advance of a scheduled hearing on the merits, including:

  • The expert’s name, address, and telephone number;
  • The subject matter on which the expert will testify;
  • The general substance of the expert’s mental impressions and opinions and a brief summary of the basis for them, or if the expert is not retained by, employed by, or otherwise subject to the control of the responding party, documents reflecting such information;
  • If the expert is retained by, employed by, or otherwise subject to the control of the responding party:
    • All documents, tangible things, reports, models, or data compilations that have been provided to, reviewed by, or prepared by or for the expert in anticipation of the expert’s testimony;
    • The expert’s current resume and bibliography;
    • The expert’s qualifications, including a list of all publications authored in the previous ten years;
    • A list of all other cases in which, during the previous four years, the expert testified as an expert at trial or by deposition; and
    • A statement of the compensation to be paid for the expert’s study and testimony in the case.
  • If the discoverable factual observations, tests, supporting data, calculations, photographs, or opinions of an expert have not been recorded and reduced to tangible form, the judge may order these matters reduced to tangible form and produced, in addition to the deposition of the expert.

Safeguard Your License by Seeking Legal Assistance Today

Receiving notice of a complaint against your occupational or professional license can be upsetting and stressful. However, even if the allegations against you are untrue, you still should take the matter seriously. Disciplinary action can result in a permanent mark on your records, adversely affecting your career and future. As a result, you should not hesitate to get the legal assistance you need in this situation, particularly if you choose to contest the allegations against you at an administrative hearing. Contact a Texas license defense attorney immediately when you receive notice of a complaint.

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Safeguard Your License by Seeking Legal Assistance Today

Disciplinary proceedings before any licensing board or agency could put you at risk of losing your license. As a result, you will need immediate legal representation to take the steps necessary to defend your license from these potentially severe consequences. At Bertolino LLP, we offer experienced professional license defense services for individuals involved in various professions. Contact us today by calling (512) 515-9518 or contacting us online. We can analyze the circumstances that led to the complaint against you and determine the legal strategy that is best calculated to reach the best possible outcome in your case.

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