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TITLE 22EXAMINING BOARDS
PART 39TEXAS BOARD OF PROFESSIONAL GEOSCIENTISTS
CHAPTER 851TEXAS BOARD OF PROFESSIONAL GEOSCIENTISTS LICENSING AND ENFORCEMENT RULES
SUBCHAPTER DCOMPLIANCE AND ENFORCEMENT
RULE §851.157Complaints and Disciplinary Actions

(a) A complaint may be filed with the Board by a member of the public, a member of the Board or by agency staff. Complaints against a person or entity whose activities are regulated by the Board must be made in writing, sworn to by the person making the complaint, and filed with the Secretary-Treasurer of the Board at the office of the Board in Austin. A complaint may be filed against any person who: holds a Professional Geoscientist license issued by the Board and/or is the Authorized Official of a Firm (AOF) registered by the Board, is a registered Geoscience Firm, or holds a certificate as a Geoscientist-in-Training issued by the Board. A complaint may also be filed against a person or firm that is not licensed or registered with the Board alleging that the person or firm has engaged in the unlicensed or unregistered public practice or offering of geoscientific services in Texas. A state agency that becomes aware of a potential violation of the Act or a rule adopted by the Board may fulfill the requirements of the Act in Texas Occupations Code, §1002.207, by filing a formal complaint with the Board or providing the information relating to the potential violation in writing to TBPG staff. Information forwarded by a state agency that is privileged or confidential remains privileged or confidential following receipt by the Board. The privilege or confidentiality extends to any Board communication concerning the information forwarded, regardless of the form, manner, or content of the communication.

(b) A complaint must be filed within two (2) years of the event giving rise to the complaint. The event giving rise to the complaint is an event from which a concern with geoscience work completed becomes apparent. Complaints filed after the above stated period will not be accepted by the Board unless the Complainant can show good cause to the Board for the late filing.

(c) Complaints and investigations under this chapter are of two types:

  (1) Complaints received from a member of the public; and

  (2) Complaints and investigations that are initiated by the Board as a result of information that becomes known to the Board or agency staff and that may indicate a violation.

(d) The agency provides a complaint form which should be used to file a complaint.

  (1) A complaint from a member of the public must be:

    (A) In writing;

    (B) Sworn to by the person making the complaint; and

    (C) Submitted to the authorized staff deputy to the Secretary-Treasurer or electronically through the Board's internet website.

    (D) The Board shall accept a complaint regardless of whether the complaint is notarized.

  (2) A complaint that is initiated by a member of the Board or TBPG staff must be:

    (A) Made in writing; and

    (B) Signed by the person who became aware of information that may indicate a violation.

(e) The Board shall maintain the confidentiality of a complaint from the time of receipt through the conclusion of the investigation of the complaint. Complaint information is not confidential after the date formal charges are filed. Information submitted to the Board that has not been filed as a complaint and the identity of the person who submits the information are not confidential. The TBPG maintains confidentiality or privilege of any confidential information submitted by a state agency under Texas Occupations Code, §1002.207. A state agency will inform the TBPG of the confidentiality or privilege provisions applicable to the information in accordance with procedures agreed upon between the agencies. If TBPG opens a complaint based on information it has received, the information becomes a part of the complaint record and is subject to the confidentiality provisions in Texas Occupations Code, §1002.202, in addition to any other confidentiality provisions that may apply.

(f) If a complaint is determined to be frivolous or without merit, the complaint and other information related to the complaint are confidential. The information is not subject to discovery, subpoena, or other disclosure. A complaint is considered to be frivolous if the Executive Director and investigator, with Board approval, determine that the complaint:

  (1) Was made for the likely purpose of harassment; and

  (2) Does not demonstrate apparent harm to any person.

(g) Under the authority and provisions of the Texas Geoscience Practice Act (Act), the Board shall take disciplinary action against an applicant for a license, registration or certification or a license, registration, or certification holder who is found censurable for a violation of law or rules. A disciplinary action may be composed of any one or combination of the following listed in paragraphs (1) - (11) of this subsection:

  (1) Refuse to issue or renew a license, registration or certification;

  (2) Permanently revoke a license, registration or certification;

  (3) Suspend a license, registration or certification for a specified time, not to exceed three years, to take effect immediately notwithstanding an appeal if the Board determines that the holder's continued practice constitutes an imminent danger to the public health, safety, or welfare;

  (4) Issue a public or private reprimand to an applicant, a license holder, or an individual, firm, or corporation practicing geoscience or using a title authorized by the Texas Geoscience Practice Act or rules of the Board;

  (5) Impose limitations, conditions, or restrictions on the practice of an applicant, a license holder, or an individual, firm, or corporation practicing geoscience using a title authorized by the Texas Geoscience Practice Act or rules of the Board;

  (6) Require that a license, or certificate holder participate in a peer review program under rules adopted by the Board;

  (7) Require that a license or certificate holder obtain remedial education and training prescribed by the Board;

  (8) Impose probation on a license, registration or certificate holder requiring regular reporting to the Board;

  (9) Require restitution, in whole or in part, of compensation or fees earned by a license holder, individual, firm, or corporation practicing geoscience under this chapter;

  (10) Impose an appropriate administrative penalty as provided by Chapter 1002, Subchapter J of the Texas Geoscience Practice Act for a violation of the Act or a rule adopted by the Board on a license, registration or certificate holder or a person or firm who is not licensed and is not exempt from licensure under this chapter; or

  (11) Issue a cease and desist order.

(h) All disciplinary actions shall be permanently recorded and made available upon request as public information.

(i) A license holder whose license has expired for nonpayment of renewal fees continues to be subject to all provisions of the Act and Board rules governing license holders until the license is revoked by the Board or becomes non-renewable under the Board's rules or the Act.

(j) Criminal convictions shall be handled as shown in paragraphs (1) - (3) of this subsection:

  (1) The Board shall follow the requirements of Administrative Procedure Act, Texas Government Code Chapter 2001, and shall revoke the license of any license holder incarcerated as a result of a felony conviction, or violation of felony probation or parole, or revocation of mandatory supervision subsequent to being licensed as a Professional Geoscientist.

  (2) The Board may take any of the actions set out in subsection (g) of this section when a license holder is convicted of a misdemeanor or a felony without incarceration if the crime directly relates to the license holder's duties and responsibilities as a Professional Geoscientist.

  (3) Any license holder whose license has been revoked under the provisions of this subsection may apply for a new license upon release from incarceration.

(k) The Board, the Executive Director, an administrative law judge, and the participants in an informal conference may arrive at a greater or lesser sanction than suggested in these rules. Allegations and disciplinary actions will be set forth in the final Board Order and the severity of the disciplinary action will be based on the factors listed in paragraphs (1) - (9) of this subsection:

  (1) The seriousness of the acts or omissions;

  (2) The number of prior disciplinary actions taken against the respondent;

  (3) The severity of penalty necessary to deter future violations;

  (4) Efforts or resistance to correct the violations;

  (5) Any hazard to the health, safety, property or welfare of the public;

  (6) Any actual damage, physical or otherwise, caused by the violations;

  (7) Any economic benefit gained through the violations;

  (8) The economic harm to property or the environment caused by the violation; or

  (9) Any other matters impacting justice and public welfare.


Source Note: The provisions of this §851.157 adopted to be effective December 15, 2010, 35 TexReg 10695; amended to be effective January 1, 2014, 38 TexReg 9368

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