In determining which party bears the burden of proof, the judge shall first consider the applicable statute, the referring agency’s rules, and the referring agency’s policy in accordance with 155.419 of this chapter. After considering those sources, the judge may consider additional factors, including:

(1) the status of the parties;

(2) the parties’ relative access to and control over information pertinent to the merits of the case;

(3) the party seeking affirmative relief;

(4) the party seeking to change the status quo; and

(5) whether a party would be required to prove a negative.

The provisions of this 155.427 adopted to be effective November 26, 2008, 33 TexReg 9451; amended to be effective January 1, 2017, 41 TexReg 8593.