All Error is Harmful & None of it is Waived

All Error is Harmful & None of it is Waived

Sunday, September 16, 2007

SUBPOENAS- SECTION 301.071, TUC ACT--RULE 18(1)(A), 40 TAC §815.18(1)(A)

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 therefor 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 and attach it to the front of the file, identify which documents need to be mailed to the parties with the next hearing notice by attaching the appropriate form, and then return the file to the State Office to the attention of the scheduler.

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.

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. 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. §202.071. (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. §202.071 (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. §202.071 (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. §202.071 (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. §202.071 (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, Attor-ney 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. §202.071 (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. §202.071 (1993).]


TEXAS WORKFORCE COMMISSION


________________________________
Director of Appeals

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