22 Tex. Admin. Code § 3.232 - Board Responsibilities
(a) The
Board shall investigate Contested Case matters and attempt to resolve Contested
Cases informally as provided in Subchapter I of this chapter (relating to
Disciplinary Action). However, if a Contested Case is not settled informally
pursuant to Subchapter I of this chapter, it shall be referred to SOAH for a
formal hearing to determine whether there has been a violation of any of the
statutory provisions or rules enforced by the Board.
(b) A formal hearing shall be conducted in
accordance with the Rules of Procedure of SOAH.
(c) After a formal hearing of a Contested
Case, the SOAH administrative law judge who conducted the formal hearing shall
prepare a proposal for decision and submit it to the Board so that the Board
may render a final decision with regard to the Contested Case. The proposal for
decision shall include findings of fact and conclusions of law.
(d) If a party submits proposed findings of
fact or conclusions of law, the proposal for decision shall include a ruling on
each proposed finding or conclusion.
(e) Any party of record in a Contested Case
may request an oral hearing before the Board. A request for an oral hearing
shall be filed with the Board and copies shall be served on the administrative
law judge and on all other parties in the same manner as for serving other
documents in a Contested Case. The Board, in its sole discretion, shall
determine whether to grant or deny a request for an oral hearing. If a request
for an oral hearing is granted, each party of record shall be allotted 30
minutes to make an oral presentation to the Board. The oral presentation shall
be limited to matters contained in the administrative record.
(f) Upon the expiration of the time provided
for the filing of exceptions and briefs or, if exceptions and briefs are filed,
upon the 10th day following the time provided for the filing of replies to
exceptions and briefs, the Board may render a decision to finally resolve a
Contested Case. The Board may change a finding of fact or conclusion of law
made by an administrative law judge or may vacate or modify an order issued by
an administrative law judge only if the Board determines:
(1) that the administrative law judge did not
properly apply or interpret applicable law, agency rules, written policies, or
prior administrative decisions;
(2)
that a prior administrative decision on which the administrative law judge
relied is incorrect or should be changed; or
(3) that a technical error in a finding of
fact should be changed.
(g) If the Board makes a change to a finding
of fact or conclusion of law or vacates or modifies an order pursuant to
subsection (f) of this section, the Board must state in writing the specific
reason and the legal basis for the change.
(h) The Board shall issue a written order
regarding the Board's decision to finally resolve a Contested Case that is not
settled informally. The written order shall include findings of fact and
conclusions of law that are based on the official record of the Contested Case.
The written order may adopt by reference the findings of fact and conclusions
of law made by an administrative law judge and included in the proposal for
decision submitted to the Board.
(i) Motions for rehearing and appeals may be
filed and judicial review of final decisions of the Board may be sought
pursuant to the Administrative Procedure Act. The party who appeals a final
decision in a Contested Case shall be responsible for the cost of the
preparation of the original or a certified copy of the record of the agency
proceeding that is required to be sent to the reviewing court.
(j) The Board and the administrative law
judge who presides over the formal hearing in a Contested Case shall refer to
the following guidelines to determine the appropriate penalty for a violation
of any of the statutory provisions or rules enforced by the Board:
(k) The penalty for a violation of
any of the statutory provisions or rules enforced by the Board may vary from
the penalty recommended in subsection (j) of this section if justified by the
circumstances of the matter or the disciplinary history of the respondent. If
the Respondent has previously been subject to disciplinary action before the
Board, more severe discipline may be imposed.
(l) For any violation where revocation is
recommended as an appropriate penalty for the violation, refusing to renew the
respondent's certificate of registration also shall be an appropriate penalty
for the violation.
(m) If the Board
or the administrative law judge determines that an administrative penalty is
the appropriate sanction for a violation, the guidelines described in §
3.177 shall be applied to determine the amount of the administrative
penalty.
Notes
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