200 From What May an Appeal Be Filed and By Whom - Parties of Interest

  1. An appeal may be filed by a claimant from any action that affects the claimant's right to benefits.
  2. An appeal may be filed by an individual or organization from a determination that affects a claimant's entitlement to benefits if the individual or organization is a party of interest to the determination.
  3. To determine when a party is a “party of interest” see TWC Rule 15, 40 TAC 815.15.
  4. Because most of the individuals who file appeals for others are authorized to do so and it would be an unnecessary delay to wait to determine whether such authority existed before scheduling a hearing, such appeals are routinely scheduled for hearings.
  5. If it is apparent that there is some question as to the authority of the individual who filed the appeal, this will be made an issue on the notice of hearing and testimony on this issue will be taken prior to the development of the record on the substantive issue on appeal. In any case where it is discovered that the person who filed the appeal had no authority of record to do so, the appellant should be asked at the hearing if the filing of the appeal was authorized by the appellant. If the appellant had not previously authorized the filing of the appeal, it is acceptable for the appellant to ratify the filing of the appeal at the hearing. Necessary authority is then a matter of record if the case is further appealed to the Commission.

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201 Appeals By Persons Who Are Not Parties of Interest

  1. If an employer has failed to file a timely protest to the initial claim in accordance with Section 208.004 of the TUC Act, the employer will be mailed a Late Employer Response determination (prior to November 1996, a form FL-275) by the Commission advising the employer that the protest was late. In determining whether the employer has protested payment of benefits in a timely manner, the Commission has ruled that the postmark date of the letter will be used and that, where the envelope has been destroyed and the postmark date is unknown, the date shown on the letter will be used. The employer has the right to file an appeal to the Late Employer Response determination or FL-275. If the case is scheduled for hearing, and if the claimant was allowed benefits based on the initial separation investigation, the notice will indicate that the issue of timeliness of the protest as well as the claimant's separation from work will be covered.
  2. On occasion, the employer may receive a Wage Verification Notice (Form FL-62 prior to November 1996). This form notifies the last employing unit of potential chargeback even though they did not file a timely protest to the Notice of Initial Claim. The Wage Verification Notice (Form FL-62) is not an appealable form. Normally, an employer's response to a Wage Verification Notice (or FL-62) will be sent to the chargeback unit of the Benefits Department so that they may issue an appealable B-530 Notice of Appeal Rights (Form FL-100 prior to November 1996).
  3. Section 208.003(a) of the Texas Unemployment Compensation Act now allows any employer to designate in writing to the Commission, an address for mail service. When an employer has designated such an address, mailing of the notice of claims, determinations, or other decisions to that address shall constitute notice in accordance with Section 208.003(b) of the Act.
  4. Although Commission personnel are instructed to use the employer's designated address when mailing the notices of claim, there are occasions when this may not have been done. To check to see whether a non-federal employer has designated an address, check the CMDA screen in the Benefits System. For federal employers, check the CMEH screen in the Benefits System

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202 Form of Appeal

  1. An appeal may be initiated by any party of interest in a case, or their authorized representative, by signing and filing at a service point of the Commission, written Notice of Appeal (Form A-4) indicating disagreement with a specific determination. Such appeal may also set forth the basis for the appeal. (Commission Rule 16(1)(A), 40 TAC §815.16(1)(A)). The Notice of Appeal should identify the determination from which the appeal is taken, the date on which the appeal is filed, and the Commission representative who accepted the appeal. Appeals may also be filed by writing or sending an appeal via facsimile directly to the Appeal Tribunal in Austin. Although completed Forms A-4 are customarily taken when an appeal is filed in a Commission service point, no such form is necessary to the filing of an appeal either in-person, by mail, or by facsimile. It is necessary only that the appeal be in writing and signed by the appellant or person acting on the appellant's behalf.
  2. Because an appeal from a determination is a matter of right, the hearing of appeals will not be conditioned upon a determination that the grounds stated for the appeal are reasonable, sufficient, adequate or lawful. Such matters raise questions to be determined by the Hearing Officer after affording the parties an opportunity for a hearing.

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203 Timeliness of Appeal

  1. Section 212.053 of the Texas Unemployment Compensation Act provides, in part, that unless the claimant or the last employing unit to which the copy of the determination was mailed files an appeal to the Appeal Tribunal from such determination within fourteen days after such copy of the determination was mailed to their last known address as reflected by Commission records, such determination shall be final for all purposes and benefits shall be paid or denied in accordance therewith.

    As to timeliness questions in general, see the Commissioners' timeliness policy found in Commission Rule 32, 40 TAC §815.32. Other procedural/ jurisdictional matters are covered throughout the Procedure Chapter of the Appeals Policy and Precedent Manual.
  2. An appeal is timely filed if it is hand-delivered, postmarked, or sent via facsimile to the Commission within fourteen days from the date of the determination. The Hearing Officer should refer to Commission Rule 32, 40 TAC §815.32 and the Procedure Section of The Appeals Policy and Precedent Manual, for more detailed specifics concerning the current policy on timeliness issues.
  3. Although Commission records may indicate that an appeal is not timely, a hearing is frequently scheduled in these cases. In this situation, the first issue to be covered will be the timeliness of the appeal. In some cases, an Order of Dismissal is issued by State Office Appeals where it appears that a finding that the appeal was not timely filed is inevitable. However, the appellant may request a hearing within fourteen days of the mailing of the Order of Dismissal if the appellant disagrees with the facts stated therein.
  4. In cases involving the question of timeliness of an appeal, the Hearing Officer should first develop the facts on the question of whether the appeal will be considered as having been timely filed. The Hearing Officer has the authority to terminate the hearing upon the conclusion of all testimony on the timeliness issue if he or she is certain that the decision clearly required by the evidence in the record is that of dismissing the appeal for lack of jurisdiction. However, if the evidence is not clear, the Hearing Officer should cover all issues in the hearing so that if, on appeal to the Commission and contrary to the Appeal Tribunal decision, it is ruled that the appeal was timely, evidence to support a Commission decision will be available on the other issues. A similar order of proof will apply to a case in which one of the issues is whether the employer filed a timely protest to the claimant's initial, additional, or continued claim or whether the appellant filed a timely petition to reopen under Rule 16. See Section 317 of the Hearing Officer Handbook for information on the use of summary judgment generally. The Hearing Officer should consider whether the case falls into one of the exception categories of Rule 32 prior to making summary judgment.

    As to timeliness questions in general, see the Commissioners' timeliness policy found in Commission Rule 32, 40 TAC §815.32. Other procedural/jurisdictional matters are covered throughout the Procedure Chapter of the Appeals Policy and Precedent Manual.
  5. The Hearing Officer should be prepared to develop the facts in the hearing in regard to whether the determination was mailed to a correct address. Therefore, the Hearing Officer should, prior to the hearing, check the claimant's correct address of record with the Commission at the time the determination was mailed or, in the instance where the employer is the appellant, check the record to see whether the determination was mailed to the address designated by the employer on the CMDA screen (non-federal employers) or the CMEH screen (federal employers) or whether the determination was mailed to the address indicated by the employer on the protest, or on the envelope containing the protest
  6. Where a document is incorrectly addressed, even if the error is only in the zip code, the party's appeal time limit will run from the date of actual receipt. In such a case, it is not necessary for the appellant to establish that the incorrect zip code caused delayed delivery by the postal service; the party merely needs to indicate actual date of receipt and timely protest or appeal within the appropriate protest or appeal time limit following that actual receipt date.

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204 Scheduling and Postponement of Hearings

  1. As hearing schedules for all Hearing Officers are prepared in the State Office, Hearing Officer desires to take vacation leave or planned sick leave (for such purposes as doctors' appointments) should be made known to supervision as soon as possible because of our advance scheduling of hearings.
  2. When a party requests postponement of a hearing, the Hearing Officer should not refer the request to the State Office but should rule on the request and advise the party of the reasons the request has been granted or denied. The Hearing Officer should ask the party making the request the reason for the postponement request, and should refrain from reading them a list of circumstances where postponements may be granted. The Hearing Officer should verify whether an employer is a party of interest BEFORE ruling on an employer request.
  3. Postponements are now governed by Rule 815.16(4)(B).
  4. When a request for postponement by an interested party is denied, the Hearing Officer should explain the option that a party of interest has under Rule 16 (40 TAC §815.16) of the Commission Rules to request a reopening of the hearing within fourteen days after the mailing date of a decision in the case. The Hearing Officer should not guarantee a party that their petition for reopening would be granted. The Hearing Officer should specifically indicate to the party that they must wait for receipt of the decision prior to making a written request for a reopening of the hearing.

    Also, in denying a postponement request by an appellee, the Hearing Officer should explain that the appellant may not appear or the appellant may appear but offer evidence which supports the determination on appeal. In either case, the determination may remain unchanged.
  5. When a postponement requested by an employer which is not a party of interest is denied, the Hearing Officer should explain to that party that they will have no further appeal rights and that, if they fail to send a representative, no courtesy copy of the decision will be mailed to them
  6. The Hearing Officer will often be able to arrange for an alternative representative to appear when the request is from an employer representative who is unable to appear. Once it is explained to an employer representative that testimony from, for example, a supervisor who worked with the claimant will carry greater weight than testimony from a company officer who lacks firsthand knowledge of the claimant's separation from the job, arrangements are often made to have the former person at the hearing.
  7. If a request for postponement is based on the unavailability of one or more persons on the scheduled date of the hearing and if that request is denied, the Hearing Officer should determine if the unavailable person(s) is/are firsthand witness(es). If so, the Hearing Officer should explain the "mixed" hearing option (see Section 316.15 of this Handbook) and the reopening provision of Rule 16. If a party elects to "appear" only by submitting an affidavit or other written statement, that fact should be clearly noted on the decision cover sheet
  8. The Hearing Officer should urge the parties to appear at the first scheduled hearing if at all possible because of the additional issue of good cause which will be presented at any hearing scheduled under the reopening provision in Commission Rule 16(5)(B), 40 TAC 815.16(5)(B). In any discussion of this provision in Rule 16, Hearing Officers should explain good cause and its ramifications.

    IMPORTANT: Also see Subchapter 217 of this Handbook and Section MS 30.00PDF of the Appeals Policy and Precedent Manual.
  9. If an appellant requests in writing that an appeal be scheduled or not scheduled, on certain days or at certain times, scheduling should accommodate such request so long as the request is for a time which is during customary Appeals office hours. Any requests for a time outside those hours or days will not be granted. Unless provided for by policy, any request for by policy, any request for a delay of longer than thirty days should be presented to supervisor for supervision. Any request which embodies an inordinately long period of delay should be presented to supervision for consideration. In the event an approvable request, as described above, has been made in writing but has been overlooked in the scheduling of a hearing, the hearing should be postponed if requested by the appellant whose earlier written request was overlooked. If no complaint is made by such appellant, the hearing should not be postponed on the Hearing Officer's initiative alone.
  10. Any time a hearing is postponed or canceled in advance, or the appellant has withdrawn his or her appeal, and there are at least five days before the hearing was scheduled to be conducted, the Hearing Officer should notify the scheduler to attempt to fill the vacant docket space with another hearing. If a hearing officer receives a schedule that is not complete, it is the responsibility of the hearing officer to notify supervision the hearing officer is available for additional hearings.

    All Hearing Officers, whether stationed in the State Office or outside the State Office, should reset their hearings by use of electronic mail (e-mail), except as explained below.

    Files for cases being reset should be retained by the Hearing Officer. The Commission is under the obligation to copy and mail to the parties all documents in its possession at the time of the mailing of the hearing notice. Consequently, if a Hearing Officer is resetting a case where the Commission has received new documentation since the time the prior hearing notice was mailed, the Hearing Officer should complete a reset form with instructions, attach it to copies of the documents, and send them to "Attn Scheduler". When sending documents for resetting to the scheduler's attention, the Hearing Officer should retain the file and the original documents.
  11. Reset messages should be sent on a daily basis. The Hearing Officer should not wait to advise the State Office of the need to reset a case. Reset messages should include the claimant’s name, social security number, case number, reason for reset, any changes in party addresses, and any special instructions for setting. Reset messages should be sent directly to the attention of the departmental scheduler. Abbreviations may be used in the message if they can be deciphered. A notation should be made in the file that a message was sent requesting resetting. A separate message should be sent for each case.
  12. Messages concerning continuances which require a hearing notice to be issued, which will be set on a non-hearing day such as Friday, and which are not for cases where new documentation must be mailed to the parties, should be handled by electronic mail addressed to the scheduler in the State Office. The date, time, issues, and any other pertinent information should be provided. If new documentation must be mailed to the parties for the next hearing, the Hearing Officer should complete a reset form and attach it to the front of the documents, and send to the State Office to the attention of the scheduler. The file should be retained.
  13. Hearing Officers should not telephone the state office clerical staff about resets or continuances absent an emergency situation
  14. If a Hearing Officer is scheduled an in-person hearing at some TWC facility other than an Appeals Department office, a copy of the Hearing Officer's schedule is sent to the facility in which the Hearing Officer is to conduct the hearings.
  15. In order to comply with the Gutierrez settlement, the Hearing Officer conducting a telephone hearing involving work separation should establish that the parties received the original hearing packet. This is the packet that included the investigation fact finding statements, employer protest, documents collected during the investigation, and the appeal. If the Hearing Officer discovers one of the parties did not receive this packet and documents, the Hearing Officer should continue the case to another date to allow for mailing of the packet to the party who did not receive it. If the Hearing Officer discovers the non-receipt of the packet in sufficient time, the Hearing Officer should try to mail or fax a copy of the packet to the party and proceed with the hearing as scheduled. Otherwise the case should be reset, and the Hearing Officer should give specific instructions to the scheduler to send all of the file documents to the parties when the case is reset.
  16. Whenever a hearing is postponed or canceled, the parties involved should be notified if possible.

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205 Notice of Appeal Hearing

  1. In appeals involving the issue of the claimant's separation from work, notice of the hearing will be mailed to the claimant, to the individual or organization for whom the claimant last worked, and to any known party representative. The individual or organization for whom the claimant last worked will be notified of the hearing even if a protest to the initial claim was not filed in a timely manner.
  2. In an appeal involving a separation issue arising from a continued or additional claim, notice of the hearing will be mailed to the claimant and the employer, although the employer in a case of this kind may not have been notified that the claim had been filed.
  3. In an appeal where the file reflects that the Appeal Tribunal does not have jurisdiction over the question of the claimant's separation from work and the only issue involved is one of the claimant’s eligibility for benefits, the notice of the hearing will be sent only to the claimant unless the employer is a party of interest with respect to such issue.
  4. When an employer is a party of interest with respect to any determination affecting a claimant's entitlement to benefits, such employer will be treated as a party of interest in all respects such as appeal rights and reopening rights under Commission Rule 16, etc.
  5. In appeals involving the issue of a claimant's refusal of work, notice of the hearing will be sent only to the claimant unless an employer had actual contact with the claimant. In the latter instance, a copy of the notice will be sent to such employer even if it is not a party of interest.
  6. In appeals involving only chargeback to an employer's unemployment insurance tax account, notice of the appeal hearing will be sent only to the employer, unless the possibility exists that the wages reported by that employer may be deleted from the claimant’s base period. This would occur if, for example, the employer indicates the claimant never worked for him or had worked for him as an independent contractor and not an employee. If the deletion of base period wage credits is thus a possible issue, the claimant must be notified of the hearing.
  7. In appeals involving the issue of whether the claimant is entitled to additional wage credits, notice of the hearing will be mailed to each specific employer by whom the claimant alleges wages should have been reported.
  8. In the case of consolidated or multi-claimant hearings involving an employer and several claimants, a group notice may be substituted for an individual notice to each claimant under certain circumstances. Where all the claimants interested in the hearing have selected the same individual or organization (such as a labor union) to represent them at a hearing, notice to that representative will be adequate notice to all the claimants. Where only some of the claimants interested in the hearing have selected the same representative, notice to that representative will be adequate notice only as to those claimants whom that representative represents. With respect to the other claimants, individual notices of the time and place of the hearing will be sent.
  9. Section(1)(B) of Commission Rule 16, 40 TAC 815.16(1)(B), provides that notice of a hearing shall be mailed to the parties at least five days prior to the date scheduled for the hearing. As a matter of Appeals Department practice, in the vast majority of cases hearing notices are mailed at least nine days prior to the scheduled hearing.
  10. In appeals involving the issue of a claimant's refusal of work, it may be necessary for the Hearing Officer to contact the employer to whom the claimant was referred in order to secure sufficient evidence to complete the record if the employer was not notified of the hearing. If such information is to be considered in ruling on the claimant's appeal, the employer's testimony must be taken under oath and the claimant confronted with such testimony, with right of cross-examination.
  11. In cases where the notice of hearing has not been mailed at least five days prior to the hearing date, as prescribed by Commission Rule 16(1)(B), 40 TAC §815.16(1)(B), but no objections are raised by either party concerning the adequacy of the notice of the hearing, the provisions of this rule should be considered as having been waived.
  12. The Hearing Officer should check all items on the notice of hearing for accuracy as soon as possible after receiving the schedule. Where an error has been made, it is often possible to mail a corrected notice of hearing to the parties and still afford adequate notice. If no copy of the notice was mailed to a party representative, every effort should be made to send a corrected notice notifying the representative of the hearing. However, any corrected notice must be clearly marked as such.
  13. The Hearing Officer should make every effort to obtain and verify whether the employer has a TWC tax account number and what that account number is prior to the hearing. That information may be readily available from looking at the MDCW (Claim Wage Detail) and WDIS (Wage Detail Inquiry by SSN) screens in the Benefits System or by looking at the correspondence in the file. If that information is not readily available, the Hearing Officer should attempt to locate the account number by entering the employer's name in the Employer Master File panel of the mainframe or by entering the Entity ID (E) and the employer's name in the CMES (Entity Search) screen in the Benefits System. It may also be possible to locate the account number entering the employer's federal ID number in the Employer Master File. At the time of the hearing, the Hearing Officer should verify the account number with the employer. This information is vital for scheduling and statistical purposes. If a decision does not include the correct account number for an employer that does have a Texas account number, and chargeback is an issue, the decision will not become final as to the employer.
  14. If the employer does not have a valid account number, the Tele-center may have assigned the employer a pseudo account number for tracking purposes. In that case, the Hearing Officer should continue to use that number. If the employer has been mistakenly given an account number that does not belong to that employer, the Hearing Officer should try to determine the correct number and address that in the decision. If the employer does not have an account number or the correct number cannot be determined, the Hearing Officer should contact the state office and obtain a new entity account number for that employer.

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206 Time and Place of Hearing

  1. Generally, hearings will be scheduled as telephone conference call hearings. As to the scheduling of telephone hearings in general, see Section (3)(C) of Commission Rule 16, 40 TAC §815.16(3)(C). Parties generally do not have the option of either an in-person hearing or a telephone hearing, so the Hearing Officer should not entertain requests of this nature. Unusual circumstances should be referred to the Hearing Officer's immediate supervisor or the Chief of Appeals. As to telephone hearings, see Subchapter 219 in this Handbook.
  2. In-person hearings are normally held in Commission offices or other public buildings. To preserve the atmosphere of impartiality and prevent undue influence, hearings are never scheduled at an employer's place of business, a claimant's home, union hall or any other place not considered to be a completely neutral site. Accordingly, in rescheduling hearings, the Hearing Officer should also follow this rule.
  3. The Hearing Officer must be ready to start the hearing at the designated time and the hearing should commence promptly if all parties are present. If the Hearing Officer cannot be at the place designated for a hearing at the scheduled time, the Hearing Officer should telephone the office where the hearing is scheduled and have an office representative advise the parties that the Hearing Officer will be late or unable to appear for the hearing. This may not be possible when hearings are scheduled at itinerant service points but every effort should be made to notify the parties of the situation. If several hearings are involved, the Hearing Officer's immediate supervisor should be notified so that parties involved in all of the hearings can be advised of the change.
  4. As to the proper time for beginning a hearing and the rights of late-appearing parties, see Subchapter 216 in this Handbook.

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207 Prehearing Review of the File

  1. As soon as possible after receiving a schedule, the Hearing Officer should thoroughly examine each file in order to become fully acquainted with the issues to be covered. The Decision Log in the hearing packet is the best way to see which determination(s) are included in the appeal. The Hearing Officer should read through all file documents and access all computer screens in the Benefits System that may be pertinent to the case and read any additional documents sent by the parties. The Hearing Officer should not make any assumptions, but verify everything by a thorough review of the records. Whether the employer filed a timely protest in writing, orally, or by Electronic Data Interchange should be verified. The Hearing Officer should check to see if chargeback is an issue on separation cases. The Hearing Officer may find that timeliness of appeal or petition for reopening should be an issue, but was not included on the Notice. In some cases, a non-monetary determination caused an overpayment, but that issue was not on the Hearing Notice. If the Notice fails to list an issue, and there is insufficient time for a corrected Notice, the Hearing Officer should explain the issue and related law to the parties and ask for a waiver of notice. If the parties are not willing to waive notice, then the hearing would need to be reset and proper notice given. It is not necessary to get waiver for the chargeback issue. The Hearing Officer should check Appeals Status and verify that the case is not a duplicate of a prior appeal. The Hearing Officer should also check any case notes in the appeals system.
  2. The Hearing Officer who conducts the hearing is responsible for discovering and developing all issues necessary to a proper decision. In reviewing the file, the Hearing Officer may find that some issues were incorrectly listed on the notice of hearing or that some may have been omitted. In the latter case, a corrected notice should be mailed if time permits as the party at the hearing may elect not to waive notice of an issue omitted from the hearing notice.
  3. A corrected notice must also be mailed if it is found that the notice was mailed to the incorrect address of a party, if an error has been made in designation of the appropriate employer, or if it is necessary for a particular witness to appear. If the error was the fault of the Commission and there is insufficient time to give proper notice to the parties, the hearing may need to be postponed.
  4. If a schedule assigned to one Hearing Officer is inadvertently mailed with that for another, the recipient Hearing Officer's immediate supervisor should be notified immediately as a separate search may be underway to locate that schedule. If the Hearing Officers are at different locations and if time permits, the schedule should be mailed directly to the Hearing Officer to whom it is assigned. Otherwise, it may be necessary to notify the parties and reschedule the hearings.
  5. State Office Appeals will request from the agency department or tele-center in possession of any records that all documents relating to the appeal be forwarded to the State Office. These requests are made at the time the appeal is processed. The forwarded documents then become part of the electronic case file and will be mailed out to the parties as part of the hearing packet. This information may assist the Hearing Officer in developing the record, including framing questions for witnesses. However, it must be remembered that no information contained only in agency documents shall be considered in ruling on the merits of an appeal unless such documents are made part of the formal record in the appeal. In some cases, there may be agency records that are not a part of the hearing packet, but need to be used as evidence. The Hearing Officer should take the initiative to copy these documents and send them to the parties so they may be used in the hearing.
  6. The Hearing Officer can review many claim records using the appeals department's Benefits Inquiry application. For instructions in using this, see A Guide to Using Benefits Inquiry. However, some information is not available through this application so the Hearing Officer may need to look up records through UI Claims Functions on the mainframe. Almost all information through that system is displayed on the different computer screens. It is the Hearing Officer's responsibility to access the screens to review the necessary data. For example, important information is frequently found on the notepad screen (CMNP). For New Hire separation cases, there will be no entries in NMER and information will only be found in the fact finding statements

    The following chart indicates the most common issues and screens that are used.

    Basic Appeals Activities
      Common Issues Most Commonly Used Screens Fastpath Code
    1 Separation Decision Log NMDL
    Issue Decision NMID
    Correspondence List/Detail CMCL/CMCD
    Employer Response NMER
    Fact Finding NMFF
    Current Claimant Status CTCS
    Claim Wage Detail MDCW
    Claimant Address Change History CTAH
    Last Employment Detail CTED
    2 Ineligibility Decision Log NMDL
    Issue Decision NMID
    Ineligibility Closure NMIC
    Correspondence List/Detail CMCL/CMCD
    Fact Finding NMFF
    Current Claimant Status CTCS
    3 Chargeback Decisions by Employer Account CBDE
    Chargeback Decisions History CBDH
    Employer Response Inquiry CBER
    Special Address for Chargeback CBMA
    4 Wage Credit Claim Wage Detail MDCW
    Wage Investigation Inquiry MDIQ
    Wage Investigation Outcome MDIO
    Monetary Determination History MDMH
    Wage Detail By SS Number WDIS
    5 Fraud Decision Log NMDL
    Issue Decision NMID
    Current Claimant Status CTCS
    Fact Finding NMFF
    Claimant History CTHI
    Summary of Claim Weeks BPCS
    Certification Response Detail BPRD
    Earnings Correction PCEC
    Earnings Audit PCEA
    Fraud Recommendation/Determination PCRD
    Overpayment List PCOL
    Overpayment History PCOH
  7. Correspondence from the parties to an appeal is often received in the State Office after the file has been forwarded to the Hearing Officer and before the scheduled date of the hearing. Such correspondence will be forwarded to the Hearing Officer. The Hearing Officer should review the correspondence in order to determine whether it has any bearing on the hearing or amounts to a request for withdrawal or postponement.

    If the document is a request for withdrawal of the appeal, a decision granting the request may be mailed out prior to the hearing in order to notify the parties that they need not appear but, if time does not permit this, the Hearing Officer should contact the parties by telephone to inform them of the granting of the request for withdrawal.
  8. In the prehearing file review, the Hearing Officer may encounter certain file documents which are most likely to be taken into the formal record as exhibits at the hearing. Such documents may include allegedly fraudulent continued claim forms in an unreported earnings case and jurisdictional documents (Form A-4 Notice of Appeal or letter of appeal) in a timeliness case. If such documents have not already been mailed to the parties with the hearing notice, the Hearing Officer should immediately mail the documents to the parties with a cover letter explaining that they are likely to be made a part of the formal record of the hearing. This action is particularly important in the case of a telephone hearing.

    There may be occasions in which a Hearing Officer is unable to do the prehearing file review until a time so close to the time of the hearing as to make it unlikely that a mailing will be received prior to the hearing. In such cases, if the potentially adversely-affected party does not waive his or her rights to review documents first-hand, a continuance will be necessary. Conducting prehearing file reviews as promptly as possible upon receipt of file folders will diminish the frequency of such continuances.
  9. The following interpretation of codes used on the claimant master file for the old system is provided to aid the Hearing Officer in a thorough review of the Form B-83. This would involve any claims prior to November 11, 1996. To access this screen, enter BP10 in the lower left hand command line on the main menu screen. Then type in the claimant's social security number and press "enter".

    The Form B-83 is divided into various sections. The identifying number of each section appears at the far left-hand side of the document.

    Profiles of a claimant - furnishes basic identification data - will appear on all "Pages" of CRT data.

    Section 001

    Account balance

    Section 002

    Prior Address(es)

    Section 003

    Separation information

    Section 010

    Last employing unit (LEU) information, additional claim information

    Section 100

    Prior social security number and/or additional name(s)

    Section 200(WC)

    Base period wages of the claim

    Section 300(SP)

    Stops, releases and nonmonetary records of the claim

    Section 400(CC)

    Additional claims, continued claims, and re-opened claims

    Section 500(OP)

    Overpayment records

    In the detailed list of items that follows, the Section 000 explanation is read from top to bottom. All other section explanations are read from left to right.

    Section 000: (Will appear on all "pages" of CRT)

    Social security number, initial claim date, claimant name, claimant mailing address, city, state, (FIPS code), zip code

    ADDT

    Address submitted

    PD

    Date address posted to CMF

    SRC





     

    Subrecord code
    1 prior initial claim
    2 disallowed initial claim
    4 post audit
    5 IB-1 agent state
    8 active claim
    9 suspense record

    DET



     

    Determination code
    1 sufficient wage credits, but monetary determination not final
    2 disallowed initial claim
    3 sufficient wages, monetary determination final
    4 pending succeeding monetary determination on a Combined Wage claim and/or UCFE claim, and/or UCX claim
    5 IB-1 agent state work application

    E-13

    Y - E-13 taken
    N - E-13 not taken

    SPAN

    X - needs Spanish interpreter
    (blank) - no interpreter needed

    SEX

    1 male
    2 female

    RACE



     

    Race
    1 W-NH (white, not Hispanic)
    2 B-NH (black, not Hispanic)
    3 HISP (Hispanic)
    4 AI and ALAS, NA (American Indian, and/or Alaskan Native)
    5 ASIAN PAC IS (Asian or Pacific Islander)
    6 INA (information not available)

    ADU DT

    Date Eligibility Review Notice, IB-10A will be issued
    Date B-4X will inform claimant to file in person

    RUN DT

    Run date. Date initial claim posted to CMF

    BIRTH

    Birthdate of claimant

    OWN/IND

    5 digit industry code

    CITY

    4-digit city FIPS code

    CNTY

    Y (yes) or N (no) for city residence coding - Dallas or Houston, otherwise will be blank. State and county code of residence (FD code)

    LONO

    Local office where initial claim was filed

    CCLO

    Local office of latest claim posted to CMF

    ASLO

    Agent state (2 letter abbreviation) appears when IB-1 keyed - will appear with SRC 5 and DET 5. Space will be blank for Texas claimants.

    PROG









     

    Program filed (or qualified) under
    01 - CWC
    02 - UCFE
    03 - UCFE - CWC
    04 - UCX
    05 - UCX - CWC
    06 - UCX - UCFE
    07 - UCX - UCFE - CWC
    08 - UI
    09 - UI - UCFE
    10 - UI - UCFE
    12 - UI - UCX
    14 - UI - UCFE - UCX

    INV

    Investigation
    Y - Initial claim checked for investigation
    N - Initial claim not checked for investigation

    PHONE

    PHONE

    OCC CD

    Occupational code of claimant

    REDT CD






     

    Redetermination code
    A agent state additional benefits claim keyed
    B agent state extended benefits claim keyed
    B-27 initial claim keyed that B-27 was accepted
    E extended benefit determination outside the benefit year
    F final monetary determination triggered by adding UCFE/UCX/CWC wages
    R wages added or deleted by redetermination
    S disqualification modified or deleted by State Office
    X extended benefit determination in the benefit year
    4E l 1/2 times high quarter wages requirement bypassed

    REDT DT

    Date redetermination made. If more than one redetermination, this date will be the latest transaction.

    WP CD
     

    Waiting period code
    0 - no waiting period
    1 - waiting period served
    2 - waiting period paid

    WP AMT

    Waiting period amount. Amount required to trigger waiting period claim - 3X WBA

    Section 001:

    REGULAR

    Regular benefits

    WBA

    Weekly benefit amount

    MBA

    Maximum benefit amount

    BAL

    Balance of benefits available

    PAID

    Total benefits paid

    OVPD

    Overpaid amount this benefit year

    ABSP

    Absorption. All overpayment claims absorptions used this benefit year - includes both current and prior year offsets

    DISQ.

    Total amount disqualified

    FSC (Federal Compensation) and Extended

    Same definition as regular with one Supplemental exception: MBA will be 1/2 of regular benefits

     

    Section 002:

    PRIOR ADDRESS

    Prior address(es) of claimant
    AD Document date
    PD Date address posted to CMF

    Section 003:

    SEP

     

    Separation code
    1 Laid off
    2 Quit
    3 Discharged
    4 Other

    WORKED

    Dates claimant worked for last employing unit (LEU)

    OCC

    Occupation of claimant

    LOCATION

    Location of LEU employment

    SEP REASON

    Claimant's reason for separation from LEU

    CLAIMSTAKER

    Claimstaker's name and/or desk number

    REMARKS

    Claimstaker's remarks

    Section 010:

    LEU

    Last employing unit account number

    IP LEU

    an interested party
    Y yes
    N no

    CHG

    Chargeback

    CB LEU

    account charged

    NC

    LEU account not charged

    NA

    LEU reimbursing or not a base period employer

    Section 100:

    PRIOR SSNO

    Prior social security and date of charge

    ADDL NAME

    Additional name(s). Shows quarter and year of name change and name(s) using this social security number

    Section 200:

    RC






     

    Chargeback code
    11 No decision has been issued or employer is unprotected because no response to C-66
    12 Other base period employer charge (C-66 received)
    13 LEU charge
    14 LEU no charge
    15 Other base period not charged
    16 Reimbursing employer - nonprofit organization
    17 Reimbursing employer - political subdivision
    18 Reimbursing employer - state agency liable 201.024
    19 Reimbursing employer - state agency liable 201.026

    PGM ACCT -- Please note that these account ranges apply only to accounts listed on the old Claimant Master File. Current account ranges can be found below in Section 207.10

    Program Code Program TWC Account Range
    01 Taxed 00-000001-0 98-999999-9
    03 Governmental 99-880000-0 99-899999-9
    -- (Available) 99-900000-0 99-979999-9
    10 Federal PSE 99-998000-0 99-981999-9
    12 CETA-PSE 99-982000-0 99-989999-9
    02 Reimbursing 99-990000-0 99-998999-9
    11 FECA 99-999000-0 99-999899-9
    04 CWC 99-999900-0 99-999988-9
    10 Federal PSE   99-999989-1
    06 UCFE   99-999990-5
    07 USPS   99-999991-3
    08 UCX   99-999992-1
    09 PUS   99-999993-0
    10 Federal PSE   99-999994-8

    UNIT

    Unit or store number of employer

    QTR

    Calendar quarter and year in which claimant's wages were reported as having been paid

    PAGE
     

    Page number of C-4 (payroll detail) where wages are located or a three digit number beginning with a 9 will indicate wages entered from a specific document - (9 followed by the last two digits of the form number - example: B-62 will appear as 962, Form C-50 will appear as 950, Form FL-132 will appear as 932, etc.).

    WAGES

    Wages reported by employer for employee for a specific quarter

    IND

    Industrial classification code of employer

    CB

    Ratio Chargeback percentage ratio of total wages used

    EMPLOYER

    Employer name that reported wages or

    NAME

    "REMOVED" indicating wages were removed

    Section 300:

    REMOVED

    Date of nonmonetary determination or stop pay was removed, account number of company involved in labor dispute

    SRC

    Countable issue codes on CMF

    SPN

    X determination in Spanish mailed along with English (Blank) determination only in English

    LONO

    Local or state office preparing determination

    R





     

    Reason determination prepared
    1 correction
    2 investigation
    3 other
    5 interstate
    6 overpayment
    7 redetermination
    8 code for additional claim 14 day hold
    9 code for release pay error

    D




     

    Document
    1 initial claim
    2 continued claim
    3 additional claim
    4 Form E-18
    6 other
    7 returned check or strike or flag stop
    9 code for release pay error

    DOC DT

    Date of document from which stop prepared

    STP DT

    Date stop prepared

    RUN DT

    Date suspense information posted to CMF

    STMT #

    Section of law under which penalty was assessed and code for statement

    BEG DT

    Beginning date of disqualification or ineligibility

    END DT

    Ending date of disqualification or ineligibility

    WK

    Weekly amount of 207.050 deductions

    MNTH

    Monthly amount of 207.050 deduction

    S/LD

    Labor dispute code 1, 2 or 3

    Section 400:

    SRC

    Sub record code where data is located on the CMF
    40 - original document date
    44 - supplemental document date

    LONO

    Number of office accepting claim. Interstate office uses 90 plus state FIPS code where claimant is filing

    CLM DT

    Date of claim (AC, CC or RO)

    ERNG

    Earnings reported on the continued claim

    RUN DT

    Date claim posted to CMF

    DISP



































     

    Disposition computer made of the claim in terms of payment or suspension of payment, type of claim filed, and program under which it was considered for payment.

    FIRST DIGIT
    0 paid
    1 offset
    2 paid, later disqualified
    3 offset, later disqualified
    4 paid, to be predetermined
    5 offset, to be predetermined
    6 paid, later disqualified. Need to be pre-determined
    8 disqualified or ineligible
    9 suspended

    SECOND DIGIT
    0 ordinary claim
    1 waiting period served or payment made
    2 first payment
    3 last payment
    4 last payment and waiting period
    5 first and last payment
    6 BYE final payment
    7 BYE final payment and waiting period
    9 overpaid claim not used for offset

    THIRD DIGIT
    0 regular claim
    1 additional claim
    4 IB-2 reopen claim
    5 IB-2 additional claim
    6 extended benefits
    7 extended benefits additional
    8 Federal supplemental benefits
    9 Federal supplemental benefits additional

    FOURTH DIGIT (type of program)
    0 payment not made
    1 CWC, UCFE, or UCX payment made
    8 UI or combination of UI and other program(s) payment made

    CK AMT

    Amount of check or amount of offset of absorption

    OP AMT

    Amount of overpayment

    SECT

    Section of Law under which claim was disqualified or held ineligible. **Additional claim** or **reopen claim** will appear in this space and adjacent space.

    CK NO

    Check number of claim paid

    CK DT

    Date check was written

    CNCL DT

    Date check was canceled

  10. The following chart contains the current ranges of employer account numbers by type of employer:

    From Through Type of Employer
    00-000001-9 00-879999-7 Regular Taxed
    01-000000-9 98-999999-0 Employers
    99-880000-5 99-899999-5 Political Subdivisions (Taxed Governmental Employer)
    99-900000-2 99-979999-0 Reserved Account Numbers for Later Use
    99-980000-9 99-989999-4 CETA – Public Service Employment (PSE)
    99-990000-3 99-997999-8 Political Subdivisions; Non-profit 501(c)(3); Group Accounts (All Reimbursing)
    99-998000-7 99-998899-7 Texas State Agencies (Reimbursing)
    99-999000-2 99-999899-2 Federal Agencies
    99-999900-0 99-999999-9 Other States and Countries for Interstate Claims Purposes

    In reviewing the records prior to work separation hearings, the hearing officer should determine if a chargeback ruling is appropriate. Chargeback rulings are made only if it is a separation in connection with an initial claim, the employer filed a timely protest, and is a base period regular taxed employer or taxed governmental employer. A base period reimbursing employer would have a reimbursing statement if the employer filed a timely protest. No chargeback ruling should be made if the LEU wages are from other states or countries. If the LEU is a federal agency, see Section 700.13.

  11. For some hearings, a Hearing Officer may need to consult the tax records displayed in the Employer Master File (EMF). A search can be done using the Employer Account Number, the Federal ID number, or the employer name. This screen shows the current liability status of the employer and any predecessor/successor relationships. There is also a log of useful information recorded by the tax account examiner under field tax comments (FTC). Some of the useful fastpath codes for the EMF are as follows:

    Status Master Record STS
    Previous Master Record SPM
    Original Master Record SOM
    Employment Recap (LMI Screen) SER
    Registration Information SOE
    Other Names and Addresses SON
    Predecessors SPD
    Successors SUC
    Related Accounts SRA
    Previous Name and Address SPN
    Suspend and Reopen History SUS
    Power of Attorney SPA
    Special Address (Chargebacks) SPS
    Responsible Accounts Examiner FTK
    Assignments by Account FTJ
    Field Tax Comments FTC
  12. Claims records more than three years old are archived and if need can be retrieved. Benefits Letter 21-03 explains in detail how to retrieve archived data and produce a printout of the information.

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208 Preparation for the Hearing

  1. The Hearing Officer should have the claimant's folder, the Hearing Officer Handbook, copies of the TUC Act, Commission Rules, and related material, so that quick references can be made if necessary during the course of the hearing. The Hearing Officer should always have immediate access to the Appeals Policy and Precedent Manual as a basis for the rendering of decisions. All Hearing Officers are responsible for maintaining their manuals and keeping them up to date by adding manual transmittals in a timely manner. All Hearing Officers and tele-centers have copies of the manual.
  2. The Hearing Officer should have calendars for relevant years in order that dates may be ascertained as necessary.
  3. Prior to the hearing, the Hearing Officer must review the claimant's file thoroughly and be familiar with everything contained in it.
  4. Prior to the hearing, the Hearing Officer should make arrangements with the appropriate TWC supervision for any TWC personnel, such as claims examiners, employment interviewers, etc., who will participate in the hearing, if it appears that their testimony will be needed. In cases involving an availability issue, if the claimant has imposed limitations on wages, hours, working conditions, or compliance with filing instructions, the Hearing Officer should secure expert testimony from placement personnel. Again, arrangements for such participation by agency personnel should first be made through the appropriate supervisor of those personnel. The Hearing Officer should remember that agency personnel are not party representatives and should not be granted party rights such as the right of questioning witnesses.
  5. If an in-person hearing is necessary, hearing space arrangements with Workforce Solutions offices and itinerant service points, such as county courthouses, may have been made by State Office Appeals. If at any time it becomes obvious to the Hearing Officer that these arrangements are not satisfactory, either because of space limitations or any other reason, the Hearing Officer should notify his or her immediate supervisor or, in the latter's absence, the Chief of Appeals
  6. If, as sometimes happens when hearings are scheduled to take place in a public building, the Hearing Officer is assigned to another room or area other than that indicated on the notice of hearing, or the facilities are unavailable altogether, the Hearing Officer is responsible for informing the parties of the change. This can often be accomplished by posting a simple notice at the original location, although it may sometimes be necessary for the Hearing Officer to await the arrival of the parties and arrange for an alternative hearing space.
  7. The hearing room should contain a table as well as chairs for all interested parties, their representatives, and witnesses. Writing materials should be made available to the parties should they wish to use them to make notes during the hearing.
  8. The Hearing Officer should make arrangements to have telephone calls intercepted so as not to be interrupted during the hearing except for emergency calls.
  9. The Hearing Officer may determine that copies of benefit warrants are needed as evidence for the case. If so, these should be requested in advance from "UI Central" in Outlook and copies mailed to the parties so they may be entered in evidence.

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209 Consolidated Hearings

  1. Consolidated hearings and multi-claimant appeals set for a single hearing see Section 210 in this Handbook) are similar in that they each involve one employer and more than one claimant. However, there are different circumstances in which these concepts are applied.
  2. On rare occasions, two or more appeals may be consolidated for a single hearing where the interests of justice will be served and where the rights of the parties will not be prejudiced. Such appeals involve the same employer and closely related facts although they arise as separate appeals. An example would be that of married co-workers where one spouse is discharged and the other quits in protest. The hearings are usually set by State Office Appeals for separate times, but in consecutive order. However, the Hearing Officer has the option to consolidate the hearings so that they are heard at the same time. The act of consolidating appeals for a single hearing must be noted on the record
  3. When several appeals are consolidated at the time of the hearing, the Hearing Officer should dictate into the record why the hearings are consolidated and identify all parties (including the social security numbers of all claimants), representatives, appearances, and appeal numbers involved. Although the several claimants and their representatives should select one of their number to act as the claimants' primary hearing representative, each claimant must be afforded the opportunity to offer testimony/evidence and any testimony unique to their personal circumstances. If any claimant objects to the primary representative designated by the group or if the Hearing Officer feels that any claimant's interests may not be effectively represented by another, the Hearing Officer should not consolidate that claimant's case with the others. In any instance in which appeals have been consolidated for a single hearing, only one hearing recording should be made. However, separate written decisions should be issued, each bearing a different appeal number.
  4. In each appeal which is included in the consolidated hearing, a notation should be made in the file that "the record of testimony will be found in the folder of the claimant whose social security number is ______." It is not sufficient to refer to the appeal number as claimant files are kept in social security number order.

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210 Multi-Claimant Hearings

  1. Multi-claimant hearings are hearings which involve one employer and usually a large number of claimants. Most importantly, a proper multi-claimant appeal will involve substantially identical facts. In such a case, usually only one appeal number will be assigned and only one Appeal Tribunal decision will be issued. However, all parties and their representatives will be mailed notice of the hearing. If it is confirmed at the hearing that an individual or organization (such as a labor union) is acting as the claimants' authorized representative, the claimants' copy of the Appeal Tribunal decision will be mailed to that representative as agent for the claimants. The employer will also be mailed a copy of the decision.
  2. In multi-claimant appeals, the Hearing Officer will be furnished the individual claimant folders. It is helpful if the folders are kept in alphabetical order. All documents pertaining to the group of claimants accumulated during the course of the appeal will be maintained in one claimant's folder. No attempt is to be made to put copies of all documents in the individual folders other than the notice of the hearing and a copy of the decision. The notice of hearing will contain as a reference number the social security number of the claimant in whose folder the hearing records are to be found. Similarly, the coversheet to any multi-claimant decision will identify the reference file claimant. In addition to all documents pertaining to the appeal, the reference file will also contain the recorded hearing tape.
  3. In multi-claimant cases where parties are not represented by counsel or where they are represented but no arrangements have been made for orderly presentation of testimony, it will be necessary for the Hearing Officer to have the claimants select the individual or individuals who will present testimony to support their position at the hearing. The Hearing Officer must give each claimant present an opportunity to offer testimony and to state in what way the claimant's case may be different from the general presentation made by the representative witness or witnesses
  4. Normally, it will be necessary to write only one decision. A copy of this decision will be placed in the folder of each individual claimant. However, if the facts pertaining to an individual claimant are materially different from those applying to other claimants, a separate decision should be issued for that one claimant. Generally, claimants will fall into several groups and a generic decision can be written for each group. Prehearing file review should be careful to identify AC and CC separations, chargeback issues, and timeliness of protest and appeal issues. Variations on the points may lead to decisions being written differently for different claimants.
  5. If a claimant in a multi-claimant hearing, where the claimant is the appellant, does not appear, a separate non-appearance decision with a separate appeal number should be issued. This will simplify any Rule 16 reopening request.
  6. With multi-claimant hearings, one summary sheet will be filled out with a list of the claimants and social security numbers attached. Any claimants who have decisions differing from the majority of claimants will have separate summary sheets filled out for them.
  7. Prudent preparation can make the process go more smoothly. The hearing officer should be sure and take all of the needed supplies and equipment to the hearing location. The hearing site should be inspected in advance to make certain the layout is adequate. Sound equipment and it's proper operation should be checked. The hearing officer needs a list of important phone numbers to call in emergencies. The state office can prepare a sign in sheet of claimants that helps in preparing appearances. The media should not be admitted to the hearing, and arrangements for security may be necessary to insure that non-parties do not enter the hearing room.

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211 Withdrawals - Section 212.102 TUC Act

  1. An appeal may be withdrawn by the appellant either prior to the hearing or at the hearing. If the request is made prior to the hearing, the other party must be notified as soon as possible that the appeal has been withdrawn so that there will be no unnecessary inconvenience for that party.
  2. The Hearing Officer's decision granting a withdrawal of the appeal may be issued prior to the time scheduled for the hearing if, as explained below, the appellant submits a written request for withdrawal.
  3. If the request for withdrawal of the appeal is made during a telephone hearing and the request is recorded on the cassette tape, the appellant will not be required to furnish a written request for withdrawal. However, in all other circumstances, the appellant is required to submit the request in writing. In obtaining a withdrawal during a telephone hearing, the Hearing Officer should be sure that the case has been properly identified on the record. The record should also include instructions to the withdrawing party that they have fourteen days from the date the decision is mailed to request a reopening of the case if they change their mind.
  4. If an appellant requests a withdrawal by telephone prior to the date of the hearing, the Hearing Officer should either record the withdrawal on cassette tape to be maintained in the file or ask that a written request for withdrawal be submitted within a specified period of time. If the appellant fails to submit the request within that period, the Hearing Officer should issue a non-appearance decision instead of a withdrawal decision.
  5. In cases where a withdrawal is granted after a proper explanation to the parties at the hearing of the apparent facts and applicable law, the appearance of the parties should be noted on the coversheet (A-1) of the decision. Proper funding credit for holding a hearing is accorded in this situation but not in one where there are no appearances.
  6. If a letter or other communication is received from a party which could possibly be interpreted as a request for withdrawal, it should not be interpreted as a request for withdrawal unless it is very clear in that regard.
  7. If a withdrawal of the appeal is granted, the Hearing Officer may not rule on any issue in the decision as jurisdiction over all issues is waived when a request for withdrawal is granted.
  8. IMPORTANT: Whenever a withdrawal is offered by an appellant during any direct conversation with the Hearing Officer, the latter must be certain that the appellant clearly understands the consequences of a withdrawal and their opportunity to change their mind once the Appeal Tribunal decision is issued. In this latter regard, see the last sentence in Section 211.3, above.

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212 Subpoenas - Section 301.071, TUC Act--Rule 18(1)(A), 40 TAC §815.18(1)(A)

  1. Section 301.071 of the Texas Unemployment Compensation Act empowers hearing officers to issue subpoenas. Commission Rule 18(1)(A) provides for subpoenas to compel the attendance of witnesses and the production of records for any hearing of an appeal. Under that rule, unless directed to be issued by a member of the Commission or an Appeal Tribunal, a subpoena shall be issued only upon a showing of a necessity therefore by the party applying for the issuance of the subpoena.
  2. A subpoena will be issued upon the application of a party only when it is likely that the testimony sought is relevant to a disputed material fact issue. It is not necessary for the party requesting the subpoena to establish that the issuance of the subpoena is essential, that is, that the desired testimony or documents are indispensable to the successful presentation of the party's case. Upon questioning the party requesting issuance of the subpoena, it may be found that the witness to be subpoenaed is only in possession of information that is not disputed and that this additional evidence will not be necessary. If that is the case, it will be explained to the party requesting the subpoena that it does not appear that the witness' testimony will be necessary, but if it should develop at the hearing that it is necessary, arrangements will be made to secure it. However, if it is determined that a particular witness' testimony would be relevant and material and that the witness is unlikely to appear absent a subpoena, then the Hearing Officer should postpone the hearing so that the appropriate subpoenas can be issued. Similar action should be taken with respect to any relevant and material document which the possessing entity may not produce absent a subpoena.
  3. The party requesting a subpoena should first be asked by the Hearing Officer if they have contacted the witness themselves, since witnesses often comply with a simple request of the party to appear at a hearing. If the claimant wishes to have as a witness someone who is still employed by their former employer, a corrected notice requesting that individual's presence at the hearing may be mailed if time permits.
  4. If a hearing must be postponed so that a subpoena can be issued, and no new documentation needs to be mailed to the parties with the next hearing notice, the Hearing Officer should keep the file and send an e-mail to the State Office scheduler for future scheduling for the Hearing Officer. If new documentation does need to be mailed to the parties with the next hearing notice, the Hearing Officer should complete a reset form, attach copies of the documents to be sent with the next hearing notice, and send it to the State Office to the attention of the scheduler. The Hearing Officer should retain the file and the original documents.
  5. In the case of telephone or mixed hearings, a subpoenaed witness may participate by telephone from a different location than the other hearing participants
  6. If documents are being subpoenaed for a telephone hearing, the party to which the subpoena is addressed must also send copies of those documents to the opposing party prior to the hearing. Failure to send the requested documents may require a continuance so the opposing party will have an adequate opportunity to review the documents. If documents are subpoenaed from a third party, the Hearing Officer may need to take the initiative to send copies to both parties for review.
  7. On any occasion in which a subpoena request is denied, whether requested by telephone, in writing, or in person, the Hearing Officer should complete a Contact Report Form and place it in the case file. The form should contain, among other things, a written description of the matter, the date, the person(s) requesting the subpoena, the person(s) or document(s) which were the objects of the requested subpoena, and the reason(s) why issuance of the subpoena was denied.
  8. The Hearing Officer should send a subpoena request to the designated state office personnel using the subpoena request form. Subpoenas will be sent directly via certified mail. The person in the State Office who is responsible for sending out subpoenas will also be responsible for attaching the green card which certifies delivery when it is returned by the postal service to the copy of the subpoena retained in the State Office.

In-Person

SUBPOENA
TEXAS WORKFORCE COMMISSION

John Doe
112 Oak St.
Austin, TX 78702

CERTIFIED MAIL

John Doe:

You are hereby summoned to appear before ________, Hearing Officer, a duly authorized representative of the Texas Workforce Commission, at 1215 Guadalupe, Austin, Texas, at 8:30 a.m. on the 8th day of February, 1988, at a hearing and investigation deemed necessary by the Commission in the discharge of its duty to administer the Texas Unemployment Compensation Act to determine under the terms of said Act the entitlement to benefits of claimant Jane Roe, SSN 000-00-0000, and the tax liability of the employer, ________, Account No. 00-000000-0.

It is instructed that you appear then and there to testify under oath, being summoned thereunto at the instance of the Commission.

Witness my official signature at Austin, Texas, on this the 8th day of February, 1988. [As authorized by TEX. LAB. CODE ANN. §301.071. (1993).]

TEXAS WORKFORCE COMMISSION

________________________________
Director of Appeals

In-Person and Documents

SUBPOENA
TEXAS WORKFORCE COMMISSION

Marilyn Monroe
Texas Society
123450 IH 35
Austin, TX 78701

CERTIFIED MAIL

Marilyn Monroe:

You are hereby summoned to appear and bring the personnel file pertaining to Jane Roe and related employment records before ______, Hearing Officer, a duly authorized representative of the Texas Workforce Commission, at 6114 S. First, Austin, Texas, at 10:30 a.m., on Tuesday, the 30th day of August, 1988, at a hearing and investigation deemed necessary by the Commission in the discharge of its duty to administer the Texas Unemployment Compensation Act to determine under the terms of said Act the entitlement to benefits of claimant, Jane Roe, SSN 000-00-0000, and the tax liability of the employer, Texas Society, Account No. 00-000000-0.

It is instructed that you appear and bring the aforementioned documents then and there to testify under oath, being summoned thereunto at the instance of the Commission.

Witness my official signature at Austin, Texas, on this the 26th day of August, 1988. [As authorized by TEX. LAB. CODE ANN. §301.071 (1993).]

TEXAS WORKFORCE COMMISSION

________________________________
Director of Appeals

In-Person Documents

SUBPOENA
TEXAS WORKFORCE COMMISSION

Personnel Manager
Houston Light and Power
P.O. Box X
Bay City, TX 77400

CERTIFIED MAIL

Sir:

You are hereby summoned to submit all drug test results and proof of chain of custody concerning John Doe, SSN 000-00-0000 to ______, Hearing Officer, a duly authorized representative of the Texas Workforce Commission, at 3120 Southwest Freeway, Suite 206, Houston, Texas, before Tuesday, the 2nd day of August, 1988. These documents will be included in a hearing and investigation deemed necessary by the Commission in the discharge of its duty to administer the Texas Unemployment Compensation Act to determine under the terms of said Act the entitlement to benefits of John Doe, SSN 000-00-0000, and the tax liability of the employer, Performance Management, Account No. 00-000000-0.

It is instructed that you submit the requested documents then and there, being summoned thereunto at the instance of the Commission.

Witness my official signature at Austin, Texas, on this the 19th day of July, 1988. [As authorized by TEX. LAB. CODE ANN. §301.071 (1993).]

TEXAS WORKFORCE COMMISSION

________________________________
Director of Appeals

Telephone Documents

SUBPOENA
TEXAS WORKFORCE COMMISSION

Plains Exchange
P.O. Box 123
Plains, KS 67891

CERTIFIED MAIL

Plains Equity Exchange:

You are hereby summoned to mail copies of claimant's time cards in the Plains Exchange from May, 1987 through October, 1987; copies of claimant's personnel file; and copies of the time cards of other employees doing the same job responsibility as the claimant immediately to ______, Hearing Officer, a duly authorized representative of the Texas Workforce Commission, at 3120 Southwest Freeway, Suite 206, Houston, Texas, and to John Smith, 112 Oak St., Austin, Texas 78702 before the date of the hearing on Wednesday, the 1st day of June, 1988 to be included in a hearing and investigation deemed necessary by the Commission in the discharge of its duty to administer the Texas Unemployment Compensation Act to determine under the terms of said Act the entitlement to benefits of John Smith, SSN 000-00-0000, and the tax liability of the employer, Plains Exchange, Account No. 00-000000-0. Failure to send these documents to the Hearing Officer and the claimant/employer may result in a continuance of the hearing to a later date.

It is instructed that the copies of these documents be mailed to the Hearing Officer and opposing side then and there to testify under oath, being summoned thereunto at the instance of the Commission.

Witness my official signature at Austin, Texas, on this the 18th day of May, 1988. [As authorized by TEX. LAB. CODE ANN. §301.071 (1993).]

TEXAS WORKFORCE COMMISSION

________________________________
Director of Appeals

Telephone

SUBPOENA
TEXAS WORKFORCE COMMISSION

Plains Exchange
P.O. Box 123
Plains, KS 67891

CERTIFIED MAIL

Plains Equity Exchange:

You are hereby summoned to have ______, Foreman, the West Wagon supervisor, and the payroll accountant participate in a telephone hearing before ______, Hearing Officer, a duly authorized representative of the Texas Workforce Commission, at 11:15 a.m., on Wednesday, the 1st day of June, 1988 at a hearing and investigation deemed necessary by the Commission in the discharge of its duty to administer the Texas Unemployment Compensation Act to determine under the terms of said Act the entitlement to benefits of claimant John Smith, SSN 000-00-0000, and the tax liability of the employer, Plains Exchange, Account No. 00-000000-0.

It is not necessary that these people be at the same physical location to call the Hearing Officer at 000-000-0000 then and there to testify under oath, being summoned thereunto at the instance of the Commission.

Witness my official signature at Austin, Texas, on this the 18th day of May, 1988. [As authorized by TEX. LAB. CODE ANN. §301.071 (1993).]

TEXAS WORKFORCE COMMISSION

________________________________
Director of Appeals

Telephone and Documents

SUBPOENA
TEXAS WORKFORCE COMMISSION

Sam Houston, General Manager
City Electric Cooperative, Inc.
P.O. Box 100
Itasca, TX 76001

CERTIFIED MAIL

Sam Houston:

You are hereby summoned to participate in a telephone hearing before ______, Hearing Officer, a duly authorized representative of the Texas Workforce Commission at 9:30 a.m., on Friday, the 15th day of April, 1988, at a hearing and investigation deemed necessary by the Commission in the discharge of its duty to administer the Texas Unemployment Compensation Act to determine under the terms of said Act the entitlement to benefits of claimant John Doe, SSN 000-00-0000, and the tax liability of the employer, City Electric Co-op, Account No. 00-000000-0.

It is instructed that you call the Hearing Officer at 1-800-252-3749 then and there to testify under oath, being summoned thereunto at the instance of the Commission.

You are also summoned to send immediately copies of the following documents to Hearing Officer ______ at the address of Texas Workforce Commission, Appeal Tribunal, Austin Texas 78778 and to John Doe, 123 Oak St., Austin, Texas 78701: (1) Release of All Claims and Disputes and Contractual Arrangements dated 2-24-88; (2) Bill from ABC, Inc., Invoice No. 8030 dated 2-18-88; (3) Letter to Bob Smith, Attorney at Law, General Counsel, from Joe Jones, Attorney at Law, Blanco, Texas dated 3-7-88. Failure to send these documents to the Hearing Officer and the claimant/employer may result in a continuance of the hearing to a later date.

Witness my official signature at Austin, Texas, on this the 7th day of April, 1988. [As authorized by TEX. LAB. CODE ANN. §301.071 (1993).]

TEXAS WORKFORCE COMMISSION

________________________________
Director of Appeals

Interstate

SUBPOENA
ON BEHALF OF THE INDIANA EMPLOYMENT SECURITY DIVISION

AAA Construction
P.O. Box 1000
Houston, TX 77201

CERTIFIED MAIL

Sirs:

Acting as agent on behalf of the above agency of the State of Indiana, I am hereby directing you to send the following documents, (1) all claimant's payroll records for weeks ending November 17, 1990 through March 30, 1992 and (2) time cards and canceled pay checks, to ______, Hearing Officer, a duly authorized representative of the Indiana Employment Security Division, Indiana State Employment Service, 10 North Senate Avenue, Indianapolis, Indiana 46204. These documents are to be included in the hearing at 9:30 a.m., on Monday, the 20th day of April, 1987, for the investigation deemed necessary by the Indiana agency in the discharge of its duty to administer the Indiana Employment Compensation Act to determine under the terms of said Act the entitlement to benefits of claimant Juan Garcia, SSN 000-00-0000, and the potential tax liability, if any, of the employer, AAA Construction.

It is instructed that you send all requested documents, being summoned thereunto at the instance of the Commission.

Witness my official signature at Austin, Texas, on this the 8th day of April, 1987. [As authorized by TEX. LAB. CODE ANN. §301.071 (1993).]

TEXAS WORKFORCE COMMISSION

________________________________
Director of Appeals

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213 Witness Fees - Section 212.003, TUC Act - Rule 18(1)(B), 40 TAC §815.18(1)(B)

  1. Commission Rule 18(1)(B), 40 TAC §815.18(1)(B), provides that witnesses who are subpoenaed to appear before the Appeal Tribunal or the Commission are entitled to witness fees.
  2. The Hearing Officer is provided a Witness Certification form via e-mail. Immediately following the hearing, the Hearing Officer should indicate whether the witness did or did not appear for the scheduled hearing and return the form via e-mail to the Appeals Department's business manager. If the witness did appear, the Hearing Officer should inform the witness that he/she will be sent paper-work to fill out and return in order to receive payment.

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214 Challenges to Interest - Rule 16(2), 40 TAC §815.16(2)

  1. According to Commission Rule 16(2), no Hearing Officer shall participate in the hearing of an appeal in which the Hearing Officer has an interest. Challenges to the interest of any Hearing Officer may be heard and decided by the Hearing Officer's immediate supervisor, the Chief of Appeals, or, at the latter's discretion, may be referred to the Commissioners for decision
  2. Challenges to interest very seldom arise. Hearing Officers should disqualify themselves whenever such a reasonable challenge to interest is raised. In addition, Hearing Officers should disqualify themselves on their own motion when, in their opinion, a challenge to interest, if made, would be sustained.
  3. A Hearing Officer has an interest in an appeal if it might affect the Hearing Officer monetarily or if the appeal involves in any way a near relative by blood or marriage, or a friend or close associate, or when the Hearing Officer, acting in another capacity (such as claims examiner), has previously had some material involvement in the case
  4. It is discretionary with the Hearing Officer to hear and decide the challenge or to refer it to his/her immediate supervisor. Unless it is clear that the challenge is groundless, the Hearing Officer should disqualify himself or herself. The challenge should be made part of the record.
  5. Challenges to the interest of a Hearing Officer should be considered not only if offered before the hearing but also if made at the time of hearing, if the reason for challenge did not appear before the hearing.
  6. Where a challenge is sustained, the Hearing Officer should return the file to State Office Appeals and request that the case be reset for hearing before another Hearing Officer. If the Hearing Officer's hearing site is one housing other Hearing Officers, the Hearing Officer should first attempt to exchange cases with another Hearing Officer but only if such cases are scheduled for the same time.

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215 Non-Appearance - Rule 16(5)(A), 40 TAC §815.16(5)(A)

  1. A non-appearance decision, affirming the determination on appeal, is usually issued when the appellant fails to appear at the hearing but only if a careful review of the available records in the file indicates that the determination on appeal was proper. The Hearing Officer may also issue a form non-appearance decision in cases where only the appellee appeared and offered testimony and the facts so warrant. For a form non-appearance decision, see Subsection 401.2 of the Decision Handbook.
  2. If the available record justifies a reversal of the determination on appeal, specific Findings of Fact identifying those aspects of the record relied upon in reaching such conclusion must be included in the Appeal Tribunal decision embodying such reversal.
  3. The Hearing Officer should not base a reversal of the determination on appeal solely on the appellant's statements on the Notice of Appeal (Form A-4) or in the appellant's letter of appeal (if the appellant filed the appeal by mail) or in any letter forwarded to the Appeal Tribunal in lieu of participation in the hearing or in lieu of a sworn affidavit. Such statements are generally self-serving. However, if the appellee appears and presents testimony that justifies a reversal, the Hearing Officer may issue a decision reversing the determination on appeal even though the appellant has not appeared at the hearing. In the absence of testimony, a Hearing Officer should not reverse the prior determination based on file evidence alone, unless the file evidence is clear that the prior determination was in error.
  4. With the exception of wage credits appeals, where the appellant does not appear but the appellee does appear, the latter should be dissuaded from giving testimony in the absence of the appellant. The principal reasons for this are: (1) in the absence of the appellant and any testimony from the appellee, a non-appearance decision will typically be issued leaving untouched the determination(s) on appeal and (2) the nonappearing appellant may secure a further hearing under Commission Rule 16(5)(B) and testimony given at that hearing with both parties present will typically carry greater weight than testimony given in the absence of one party. If despite this explanation by the Hearing Officer, the appellee insists on presenting its testimony (for whatever reason deemed compelling by the party), such testimony will be elicited and considered by the Hearing Officer in making his or her decision. In the case of wage credits appeals, some of which may not be highly contested and thus may lend themselves to satisfactory resolution even in the absence of the appellant, the Hearing Officer has the discretion to actively encourage the appellee to give testimony or other evidence even though the appellant has not appeared for the hearing.
  5. If only the appellee appears or calls for the hearing, testimony will normally be taken only if the appellee indicates a desire to do so, in the absence of the appellant. If no testimony is to be taken, the Hearing Officer should note next to the distribution stamp on the inside of the folder the names and titles of anyone calling and the time they were dismissed by the Hearing Officer.

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216 Late Appearances

  1. Appeal hearings are expected to begin on time. For telephone conference hearings, parties should call the number designated on the hearing notice during the thirty-minute period prior to the hearing time shown on the notice. For in-person hearings, parties should appear at the designated location at the assigned hearing time as shown on the hearing notice. If a party calls in or appears late for a hearing and the Hearing Officer has already started the hearing in the late party's absence or if the Hearing Officer has already dismissed the opposing party who called in or appeared timely, the late party will not be permitted to participate in the hearing. (see the clarification explained in paragraph 2 of this section). Such a party will be relegated to the Rule 16 reopening process if an adverse decision results from that party's failure to participate in the hearing.
  2. If a party calls in or appears late for a two-party hearing and the Hearing Officer has not yet started the hearing and the opposing party who called in or appeared timely has not been dismissed, the Hearing Officer should include the late party in the hearing. In telephone conference call hearings, Hearing Officers should promptly check Clear2There at the scheduled start time of the hearing. For two-party hearings, if only the appellant has called in, the hearing should be started on time. After five (5) minutes, the Hearing Officer should check Clear2There again. The purpose of checking after five minutes is to allow the appeals operator time to take and post calls for those parties calling in shortly before hearing time. If a call-in is posted to Clear2There more than five minutes after the scheduled time, that party would not be permitted to participate in the hearing. If Clear2There shows that the appellee has called in, the Hearing Officer should call the appellee, connect them to the conference call and conduct the hearing with both parties. Any explanations or introductory matters already covered should be repeated or the tape should be replayed up to the point of the Hearing Officer connecting the appellee. If only the appellee called, the Hearing Officer should not dismiss the appellee until the Hearing Officer has checked Clear2There no earlier than 5 minutes after the start time of the hearing. If there has been no call by the appellant recorded in Clear2There, the Hearing Officer should proceed to dismiss the non-appellant unless the Hearing Officer needs to question them.

    For in-person hearings, the procedure is similar to that described above for telephone conference hearings. The Hearing Officer should call the parties in the waiting area at the time for the hearing. If one party is not present when the hearing starts, the Hearing Officer should once again check the waiting area a few minutes into the proceeding.

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217 Rights to Reopen Hearings - Commission Rule 16(5)(B), 40 TAC §815.16(5)(B)

  1. See TWC Rule 16(5)(B), 40 TAC §815.16(5)(B) and Appeals Policy and Precedent Manual, "Miscellaneous" section for information regarding good cause for nonappearance.
  2. Where the request for reopening was not made within fourteen days from the date the decision was mailed, a ruling must be made with respect to the timeliness issue.
  3. The parties' right of cross-examination will extend to the testimony offered during the previous hearing(s) by a witness also present for the reopened hearing. Of course, such right also applies to testimony offered at the reopened hearing itself.
  4. Tapes of all prior hearings in the same case will be played back for the parties appearing at the reopened hearing. Upon completion of such review of the prior testimony, the Hearing Officer may direct any additional questions he or she may have to a witness present at the reopened hearing. The Hearing Officer shall give any such witness an opportunity to add additional testimony and shall, with respect to any such witness, renew the parties' opportunities for direct examination and cross-examination. The procedure discussed in this paragraph shall not apply to the first Appeal Tribunal hearing conducted in a case remanded by the Commissioners under Commission Rules 17(b)(3), 40 TAC §815.17(b)(3). Any such hearing shall be a de novo hearing. The procedure discussed in this paragraph shall apply to such a remand case only if such case is later reopened under Commission Rule 16(5)(B), 40 TAC §815.16(5)(B).
  5. Commission Rule 16(6)(B), 40 TAC §815.16(6)(B) provides: "At any time during the fourteen-day period from the date a decision on an appeal is mailed, unless a party of interest has already appealed to the Commission, the appeal tribunal or the supervisor of appeals may assume continuing jurisdiction over the appeal for the purpose of reconsidering the issues on appeal and issuing a corrected decision. During the period in which continuing jurisdiction is assumed, the appeal tribunal, after notice to the parties, may take any additional evidence or secure any additional information it deems necessary to issue a decision.”
  6. Within the fourteen-day period from the date an Appeal Tribunal decision is mailed, the Appeal Tribunal will issue a "CORRECTED DECISION" to correct obvious errors and inconsistencies within the decision. There will be rare occasions in which serious procedural or substantive errors have been committed of far-reaching consequences. Subsection 6(B) of Commission Rule 16 authorizes the Appeal Tribunal to assume continuing jurisdiction for the purpose of reconsidering the issues on appeal. Where a further hearing is necessary, the Appeal Tribunal will, within the fourteen-day period, mail notification to the parties that it has assumed jurisdiction as provided in Commission Rule 16 of the Rules and that a hearing will be scheduled in the future.
  7. Where the Hearing Officer has found that the appellant had good cause for missing the prior hearing(s), the prior decision(s) should be set aside. The case history for the reopened hearing should include the original determinations(s) on appeal and any prior Appeal Tribunal proceedings.
  8. All corrected decisions should be identified on the coversheet with a note: “Corrected Decision - See Findings of Fact for Explanation” typed immediately above the box containing the claimant’s name and address. All corrected decisions should contain an explanation of the change as the first paragraph of the FINDINGS OF FACT. This paragraph should be in bold and begin: “This corrected decision is being issued because the prior decision dated .....” No corrected decision should be mailed out after fourteen days from the mailing date on the first decision unless that first decision is void on its face. When a corrected decision is issued after the 14th day to correct a void decision, the FINDINGS OF FACT should also include the rationale that the Appeal Tribunal still has jurisdiction as the prior decision was void from its inception due to the error. All changes made in the body of the decision should also be in bold so that they are easily noticeable upon reading.
  9. In determining what constitutes an appearance for the purpose of implementing the reopening provision in Commission Rule 16, the following guidelines will apply:

    The term "appear" shall mean a personal appearance by party or representative who actually participates in the proceedings. Mere submission of written documents, whether sworn or unsworn, shall not constitute an appearance.

    It is vitally important that decision cover sheets accurately describe appearances so that State Office Appeals can consistently implement Commission Rule 16(5)(B). Any party representative who is present at a hearing but does not participate should be shown as an "observer". Any person who appears solely by affidavit should be shown as follows: "John Smith, by affidavit only". Although the latter will not constitute an appearance for the purposes of Commission Rule 16(5)(B), such designation on the cover sheet is simply intended to avoid any misunderstanding by the parties as to who actually participated in a hearing.

    There may be a few occasions in which an employer does not appear at a hearing but one or more of its employees participate in the hearing in response to subpoena(s) issued at the request of the claimant. Such participation shall not constitute an appearance by the employer. If this occurs, your decision cover sheet should describe such witnesses as Commission witnesses appearing by subpoena; for example, "For the Commission: John Smith, pursuant to subpoena".

    An observer who is not participating in the hearing and desires to preserve reopening rights under Commission Rule 16(5(B) should not be offered an opportunity to question witnesses or to participate in the hearing in any other manner.

    Occasionally, a party may appear without a firsthand witness and advise the Hearing Officer the witness cannot appear for a reason for which a postponement cannot be granted. In such case, the Hearing Officer should be careful to explain to the party that the party would not have Reopening rights under Commission Rule 16 if the party appears. The relative value ot firsthand testimony as compared to hearsay should also be explained so the party can make an informed decision as to whether to appear without the witness. The Hearing Officer should let the party make the decision and if the party elects to appear without the witness, the party should be permitted to do so. The Hearing Officer should make it clear that the party would have to show good cause for failure to appear if the party chooses not to appear for the hearing and pursue a reopening. Employers without appeal rights should be advised they will have no recourse regardless.

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218 Prehearing Contacts With Parties

  1. The Hearing Officer is often contacted by one or both parties to a hearing prior to the scheduled date of the hearing. The Hearing Officer should be extremely cautious during these contacts so as not to provide grounds for misunderstanding by the parties or the appearance of bias.
  2. The Hearing Officer should confine the subject of pre-hearing discussion to the applicable sections of the TUC Act, the hearing procedure, the documents contained in the case file, subpoena requests made by either party or a general discussion of the kinds of evidence which may be offered at the hearing. The Hearing Officer should not indulge in a discussion of the merits or listen at length to testimony the party should properly present at the hearing.
  3. Where the case is being reopened under Commission Rule 16, 40 TAC §815.16, and the party who may have given testimony at the previous hearing contacts the Hearing Officer, the Hearing Officer should in no way indicate that it is unnecessary for that party to appear at the reopened hearing. It should be explained that while a record of their prior testimony has been kept, new issues may arise in the reopened hearing and, should they fail to appear, the party would not have the opportunity to present rebuttal testimony or to cross-examine the other party and their witnesses. Also, if they fail to appear, good cause would be an issue at any subsequent hearing.
  4. In speaking with the Hearing Officer about the evidence to be presented at the hearing and the information contained in the file, parties will occasionally request machine copies of documents or ask about the confidentiality of the information to be presented. The Commission is subject to the requirements of the Texas Open Records Act. The Attorney General has previously ruled that unemployment insurance benefit records maintained by the TWC (including initial claim forms, employer protests, investigation reports, weekly claim forms, written appeal statements of the parties) are confidential and not disclosable to the public but are disclosable to the parties. If an individual who is not clearly a party to a particular appeal requests a file document or copies of the hearing tape pertaining to that appeal, such request must be directed to the Information Release Department in the State Office.
  5. The Hearing Officer and the party requesting a review of the file and the latter's representative, if any, may arrange a mutually agreeable time prior to the hearing for such purpose. The Hearing Officer should remain with the file during the review. Requests for documents or hearing tapes should be made to the following address: Appeal Tribunal, Texas Workforce Commission, Austin, Texas 78778...Attn: Tape/Document Duplication.
  6. Anytime there is prehearing contact with a party, the Hearing Officer will complete a contact report form with the relevant information concerning the call. This will ensure that an accurate record of information is maintained, and help protect the Hearing Officer against unfounded criticism. The contact report form should be kept with the claimant's file folder. If a party makes more than one prehearing contact with the Hearing Officer, each contact should be noted.
  7. In some cases the Hearing Officer may be contacted prior to the hearing by a spanish speaking party that does not speak English. The Hearing Officer can set up a conference with one of the sate office operators who speaks Spanish. This will enable the Hearing Officer to answer any of the participants' pre-hearing questions.

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219 Telephone Hearings

  1. The use of telephone hearings has been extremely successful and, in fact, is federally-mandated for interstate appeals.
  2. Occasionally, a party will object to telephone hearings in general and insist on an in-person hearing. Commission Rule 16(3)(C), 40 TAC §815.16(3)(C), describes the circumstances in which the Appeal Tribunal may schedule hearings to be conducted by telephone. This Rule provides the authority for such scheduling should such authority be questioned. When a party objects to a telephone hearing, the Hearing Officer should attempt to determine the reason for the objection. In many cases, the parties have an erroneous preconceived notion about the nature of telephone hearings. Unusual circumstances should be referred to the Hearing Officer's immediate supervisor
  3. In conducting telephone hearings, a Hearing Officer must be careful to avoid abridging parties' rights by forcing them to participate in hearings in which they cannot adequately hear or cannot be adequately confronted with documentary material evidence to be used against them.

    See Subchapter 316 in this Handbook for additional information on the actual conduct of telephone hearings.

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220 Limited Public Access to Appeal Tribunal Hearings

  1. Appeal Tribunal hearings are not public hearings. Thus, they are closed to any observer other than the claimant and the employer involved in a hearing and their representatives and witnesses. This restriction does not apply to employees or agents of the Texas Workforce Commission, which includes members of the Attorney General's Department and consultants retained by the Commission. It also does not apply to any non-party witness called by a hearing officer to testify.
  2. The above restrictions may be waived by a claimant but only if the claimant consents thereto on the record after having been advised of the confidentiality protections available to him or her and only after the claimant has been assured that their interests in the hearing and the decision will in no way be prejudiced if the parties decline to waive such protection
  3. News media representatives will be permitted to observe an Appeal Tribunal hearing only if both parties knowingly consent, as described above.
  4. Any permitted observer at an Appeal Tribunal hearing must conduct themselves in an unobtrusive manner; otherwise, they are subject to exclusion by the Hearing Officer. Sound recordings of a hearing may be made, again, only in an unobtrusive manner. For example, proceedings should not be delayed or interrupted to permit an observer, including a representative of the news media, to change recording tapes. Requests to televise a hearing should be immediately directed to the Director of the Appeals Department. A Hearing Officer may encounter a request that television cameras be permitted to film the hearing room or office or hearing participants prior to the hearing or during a recess. This should not be permitted if it in any way delays or threatens to delay or otherwise disrupt the hearing going forward in a timely and orderly manner.

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