37 Tex. Admin. Code § 401.41 - Preliminary Staff Conference
(a) General. After
receipt of notice of alleged violations of laws or rules administered or
enforced by the commission and its staff, the holder of the certificate,
applicant or regulated entity may request a conference with the commission's
staff for the purpose of showing compliance with all requirements of law, or to
discuss informal disposition of any complaint or contested case.
(b) Representation. The certificate holder,
applicant or regulated entity may be represented by counsel or by a
representative of his or her choice. The commission shall be represented by one
or more members of its staff and by commission legal counsel.
(c) Informal Proceedings. The conference
shall be informal, and will not follow procedures for contested cases. The
commission's representative(s) may prohibit or limit attendance by other
persons; may prohibit or limit access to the commission's investigative file by
the licensee, the licensee's representative, and the complainant, if present;
and may record part or all of the staff conference. At the discretion of the
commission's representative(s), the licensee, the licensee's representative,
and the commission staff may question witnesses; make relevant statements; and
present affidavits, reports, letters, statements of persons not in attendance,
and such other evidence as may be appropriate.
(d) Settlement Conference. At the discretion
of the commission's representative(s), the preliminary staff conference may be
concluded, and a settlement conference initiated to discuss staff
recommendations for informal resolution of the issues. Such recommendations may
include any disciplinary actions authorized by law, including administrative
penalties, restitution, remedial actions, or such reasonable restrictions that
may be in the public interest. These recommendations may be modified by the
commission's representative(s) based on new information, a change of
circumstances, or to expedite resolution in the interest of protecting the
public. The commission's representative(s) may also recommend that the
investigation be closed or referred for further investigation.
(e) Proposed Consent Order. The licensee may
accept or reject the settlement recommendations of the commission staff. If the
licensee accepts the recommendations, the licensee shall execute a settlement
agreement in the form of a proposed consent order as soon thereafter as
practicable. If the licensee rejects the proposed agreement, the matter may be
scheduled for a hearing as described in Subchapter F of this chapter.
(f) Approval of Consent Order. Following
acceptance and execution of the settlement agreement recommended by staff, said
proposed agreement shall be submitted to the Agency Chief for approval. If the
order is approved, it shall be signed by the Agency Chief. If the proposed
order is not approved, the licensee shall be so informed and the matter shall
be referred to the commission staff for appropriate action to include
dismissal, closure, further negotiation, further investigation, or a formal
hearing.
(g) Preliminary Notice. A
revocation, suspension, annulment, denial, or withdrawal of a certificate or
license is not effective unless, before the institution of contested case
proceedings, the holder of the certificate receives preliminary notice of the
facts or conduct alleged to warrant the intended action and an opportunity to
show compliance with all requirements of law.
(h) Request for Formal Hearing. Except as
otherwise provided by law, if an applicant's original application or request
for a certificate is denied, he or she shall have 30 days from the date of
denial to make a written request for a formal hearing, and if so requested, the
formal hearing will be granted and the provisions of the APA and this chapter
with regard to contested cases shall apply.
Notes
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