(a) Substitution prior to arbitration hearing. The comptroller shall remove an arbitrator from an arbitration and substitute a different arbitrator prior to the arbitration hearing taking place if the division director determines by clear and convincing evidence there is good cause for such removal.
(b) Substitution prior to award. After an arbitration hearing is held and prior to issuance of the award, an arbitrator may be removed from an arbitration and a substitute arbitrator appointed where a disaster or emergency, as defined by Government Code, §418.004 or §433.001, impacts the arbitrator's ability to complete the arbitration in compliance with this subchapter. Substitution may also take place if, as determined by the division director in the exercise of the division director's discretion, the arbitrator experiences a personal emergency, rendering them incapable of completing the arbitration in compliance with this subchapter. The substitute arbitrator appointed under this subsection shall comply with Subchapter K of this chapter in facilitating and completing a new hearing.
(c) Good cause for substitution. Good cause for substitution under subsection (a) of this section includes the following:
  (1) the individual is not eligible or becomes ineligible under the terms of §9.4260 or §9.4263 of this title, as applicable;
  (2) the individual violates one or more provisions of this subchapter;
  (3) there is a pending request for the arbitrator's removal from the registry of arbitrators and the division director, in the exercise of the division director's discretion, believes the request could impact the arbitrator's ability to conduct a fair and impartial arbitration hearing; or
  (4) the division director determines, in the exercise of the division director's discretion, that substitution is in the interests of providing for a fair, impartial arbitration hearing.
(d) Clear and convincing evidence. For purposes of this section, clear and convincing evidence means the measure or degree of proof that produces a firm belief or conviction of the truth of the allegations.
(e) Filing of substitution request. A party to an arbitration may request the substitution of an arbitrator by filing a written request with the division director. Requests must be received with sufficient time to process and investigate the request prior to the arbitration hearing if filed under subsection (a) of this section or prior to the award being issued if filed under subsection (b) of this section. If the arbitration hearing is held prior to resolution of a request under subsection (a) of this section, or an award is issued prior to resolution of a request under subsection (b) of this section, the request will be dismissed. All requests must contain the following:
  (1) a letter, addressed to the division director and signed by the requestor, that identifies the arbitration, arbitrator, and the grounds for substitution under subsection (b) or (c) of this section; and
  (2) copies of all available communications exchanged between the arbitrator and the parties, as applicable, that support the request.
(f) Confidentiality. Information reviewed under this section that is made confidential by law may not be disclosed except as provided by law. That portion of the materials considered confidential must be designated as such to protect it from disclosure.
(g) Dismissals. Requests for substitution shall be dismissed if:
  (1) the conduct complained of does not meet the requirements of subsection (b) or (c) of this section; or
  (2) the complaint is not timely or otherwise fails to meet the requirements of subsection (e) of this section.
(h) Processing time. The comptroller shall examine the request for substitution in a timely manner.
(i) Cure period. If good cause for substitution is found, the arbitrator shall be notified by the comptroller and, where applicable, given the chance to cure the violation by the deadline established in the comptroller's notice. If the arbitrator does not cure the violation by the deadline established in the comptroller's notice, the arbitrator shall be removed and a new arbitrator substituted. The comptroller shall keep a record of any removals under subsection (a) of this section in the arbitrator's file.
(j) No appeal. The determination of a request for substitution, including dismissal of the request, or the removal of an arbitrator under this section is final and may not be appealed.

Source Note: The provisions of this §9.4213 adopted to be effective April 16, 2024, 49 TexReg 4302