|(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) Any party of record in a Contested Case who is
adversely affected by the proposal for decision may file exceptions
and briefs within 20 days after the date of service of the proposal
for decision. Replies to exceptions and briefs may be filed within
15 days after the date for the filing of exceptions and briefs. Exceptions,
briefs, and replies 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.
(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.
(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
(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;
(3) that a technical error in a finding of fact should
(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
(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
(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.
(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 §5.187 of this title (relating to
Administrative Penalty Schedule) shall be applied to determine the
amount of the administrative penalty.
|Source Note: The provisions of this §5.242 adopted to be effective September 19, 1996, 21 TexReg 8684; amended to be effective July 7, 2002, 27 TexReg 5780; amended to be effective July 5, 2004, 29 TexReg 6295; amended to be effective September 19, 2006, 31 TexReg 7997; amended to be effective June 13, 2010, 35 TexReg 4713; amended to be effective April 17, 2012, 37 TexReg 2638; amended to be effective November 23, 2014, 39 TexReg 9009