22 Tex. Admin. Code § 157.17 - Final Decisions and Orders
(a) After
a proposal for decision has been issued by an administrative law judge, the
Board will render the final decision in the contested case or remand the
proceeding for further consideration by the administrative law judge.
(b) The Board is responsible for imposing
disciplinary action and/or assessing administrative penalties, if any, against
a respondent who is found to have violated any of the Board's statutes or
rules. The Board welcomes recommendations from an administrative law judge as
to the sanctions to be imposed, but the Board is not required to give
presumptively binding effect to the judge's recommendations and is not bound by
such recommendations.
(c) If the
Board remands the case to the administrative law judge, the Board may direct
that further consideration be accomplished with or without reopening the
hearing and may limit the issues to be considered. If, on remand, additional
evidence is admitted that results in a substantial revision of the proposal for
decision, or the underlying facts, the administrative law judge shall prepare
an amended or supplemental proposal for decision and this subchapter applies.
Exceptions and replies shall be limited to items contained in the amended or
supplemental proposal for decision.
(d) The proposal for decision may be acted
upon by the Board after the expiration of the applicable time periods for
filing exceptions and replies to exceptions, and after the administrative law
judge has ruled on any exceptions and replies.
(e) Any party may request oral arguments
before the Board prior to the final disposition of the contested case. If the
Board grants oral argument, oral argument will be conducted in accordance with
this subsection.
(1) The chairperson or the
Board member designated by the chairperson to preside (the presiding member)
shall announce the case. Upon the request of any party, the presiding member
may conduct a prehearing conference with the parties and their attorneys of
record. The presiding member may announce reasonable time limits for any oral
arguments to be presented by the parties.
(2) Oral arguments on the proposal for
decision shall be limited to the record established at the contested case
hearing. New evidence may not be presented on the substance of the case unless
the party submitting the evidence establishes that the new evidence was not
reasonably available at the time of the contested case hearing or the party
offering the evidence was misled by a party regarding the necessity for
offering the evidence at the contested case hearing.
(3) In presenting oral arguments, the party
bearing the burden of proof shall open and close. The party responding may
offer rebuttal arguments. Parties may request an opportunity for additional
rebuttal subject to the discretion of the presiding member.
(4) After being recognized by the presiding
member, the members of the Board may ask questions of the parties. If a party
is represented by counsel, the questions must be directed to the party's
attorney. Questions must be limited to the record and to the arguments made by
the parties.
(5) Upon the
conclusion of oral arguments, questions by the members of the Board, and any
discussion by the member of the Board, the presiding member shall call for a
motion regarding disposition of the contested case. The presiding member may
vote on the motion. A motion may be granted only if a majority of the members
present and voting vote in favor of the motion. In the event of a tie vote, the
presiding member shall announce that the motion is overruled.
(f) Final orders on contested
cases shall be in writing and signed by the presiding officer of the Board.
Final orders shall include findings of fact and conclusions of law separately
stated from disciplinary actions imposed and administrative penalties assessed.
Parties shall be notified as provided in Chapter 2001, Texas Government Code.
On written request, a copy of the decision or order shall be delivered or
mailed to any party and to the respondent's attorney of record.
(g) The Board may change a finding of fact or
conclusion of law in a proposal for decision when the Board determines that:
(1) the judge did not properly apply or
interpret applicable law, agency rules, written policies provided by staff or
prior administrative decisions;
(2)
a prior administrative decision on which the judge relied is incorrect or
should be changed; or
(3) a
technical error in a finding of fact should be changed.
(h) If the Board modifies, amends, or changes
a finding of fact or conclusion of law in a proposal for decision, the order
shall reflect the Board's changes and state the specific reason and legal basis
for the changes.
(i) If the Board
does not follow the recommended disciplinary action and/or administrative
penalty in a proposal for decision, the order shall explain why the Board chose
not to follow the recommendation.
(j) Imminent Peril. If the Board finds that
an imminent peril to the public health, safety, or welfare requires immediate
effect on a final decision or order in a contested case, it shall recite the
factual and legal basis for its finding in the decision or order as well as the
fact that the decision or order is final and effective on the date rendered, in
which event the decision or order is final and appealable on the date rendered,
and no motion for rehearing is required as a prerequisite for appeal.
(k) Conflict of Interest. A Board member
shall recuse himself or herself from all deliberations and votes regarding any
matter:
(1) the Board member reviewed as a
member of a Peer Investigative Committee;
(2) involving persons or transactions about
which the Board member has a conflict of interest;
(3) involving persons or transactions related
to the Board member such that it creates the appearance of a conflict of
interest; or
(4) in which the Board
member participated in the negotiation of a consent order.
Notes
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