(a) Actions subject to appeal. The following actions are subject to appeal.
  (1) An appeal may only be filed based on denial or disqualification of an application for TxCDBG funding as a result of procedural errors by Department staff. All other decisions regarding contracts and grant administration are final.
  (2) The failure of a grant administrator or consultant to properly submit all required documentation to the Department is not a basis for appeal.
  (3) A request to waive program requirements is not a basis for appeal.
(b) Procedures for requesting an appeal. The following procedures shall apply when an applicant requests an appeal.
  (1) Notice of denial or disqualification. The Department shall send the applicant a written notice of denial or disqualification of its application and the ground(s) on which the denial or disqualification is based. The notice shall be provided by certified mail, return receipt (or its equivalent), or sent electronically by email or facsimile. The notice is considered to be received by the applicant when it is delivered by certified mail, return receipt (or the equivalent private delivery service), by facsimile, or by email. If the notice is undeliverable, it is considered to be received by the applicant five days after being sent to the addressee's last known mailing address, facsimile number, or email address.
  (2) Who may file. Only the chief (executive or elected) official or designated representative of the applicant may submit the request for appeal.
  (3) Request for appeal. The request for appeal must be submitted in writing and postmarked, or received by the Department if submitted by email, on or before 5:00 p.m. Central Time not later than fifteen (15) days after the receipt, or deemed receipt, of the notice of denial or disqualification. The request for appeal must clearly identify the action being appealed, include a statement of facts or other pertinent information to support the appeal, and include a copy of the notice of denial or disqualification.
  (4) Acknowledgement of receipt. The Department shall acknowledge the receipt of the request for appeal within ten (10) days of its receipt of the request.
(c) Hearing Procedures. The administrative hearing shall be conducted in accordance with the Administrative Procedure Act, Government Code, Chapter 2001, and this section.
  (1) Venue. All hearings shall be held in Austin, Texas, unless for good cause and in the public interest another place of hearing is designated by the administrative review official (ARO).
  (2) Notice of hearing. Upon receipt of a timely request for appeal, the Department shall set a hearing and send written notice of the hearing to the appellant at least ten (10) days before the date of the hearing. The hearing notice shall state:
    (A) the date, time, and place where the hearing is to be held; and
    (B) that failure of appellant or appellant's representative to appear at the hearing shall constitute a waiver of appellant's right to appear personally before the ARO, unless the ARO reschedules the hearing.
  (3) Conduct of hearing.
    (A) The ARO shall conduct the hearing as an informal proceeding. The formal rules of court shall not apply unless necessary for efficient conduct of the hearing.
    (B) The hearing shall be recorded by a tape recorder or teleconference equipment and kept on file for ninety (90) days after the hearing. During this period, the appellant may copy or transcribe this information at its own expense.
  (4) Burden of proof. Appellant has the burden of proof to show, by a preponderance of the evidence, that the Department's denial or disqualification of appellant's application was based on a procedural error made by Department staff.
  (5) Documentary evidence. A party must file all documents relating to the appeal with the docket clerk and must serve, at the same time, a copy on the other party.
(d) Proposal for Decision. Within sixty (60) days after the date of the hearing, the ARO shall issue a proposal for decision based on information provided by the Department and the appellant, and on program regulations. This timeframe is an administrative requirement for the Department and may not be used as a basis for overturning the Department's action if a decision is not made within the specified timeframe.
(e) Final Decision.
  (1) The Commissioner, or designee, shall review the ARO's proposal for decision and issue a final decision on the appeal. The final decision shall be issued within ninety (90) days after the date of the hearing and shall be based on and limited to review of the ARO's proposal for decision and information presented by the parties in support of their positions.
  (2) The Commissioner's decision of the appeal shall be the final decision of the Department.
(f) Effect of State Agency Action.
  (1) The Department's action shall remain in effect during the appeal process.
  (2) If the final decision on the appeal is in favor of the appellant, the appellant is not guaranteed to receive grant funding. The appellant's application will be scored and compared to other applications scored during the application cycle. If the revised score does not put the appellant in funding range when ranked against other applications from the same scoring round, no award will be made.
(g) Computation of time. In computing any period of time prescribed by this section, the day of the act, event, or default after which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included, unless it is a Saturday, Sunday or legal holiday, in which event the period runs until the end of the next day which is not a Saturday, Sunday or legal holiday.

Source Note: The provisions of this §30.8 adopted to be effective August 28, 2022, 47 TexReg 5099