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TITLE 22EXAMINING BOARDS
PART 14TEXAS OPTOMETRY BOARD
CHAPTER 277PRACTICE AND PROCEDURE
RULE §277.2Disciplinary Proceedings

(a) General statement. In a contested case before the board, proceedings shall be governed by the Administrative Procedure Act (APA), except as specifically provided in the Optometry Act. In any contested case, opportunity shall be afforded to all parties to respond and present evidence and argument on all issues involved. Unless precluded by law, informal disposition may be made of any contested case by stipulation, agreed settlement, consent order, default, refund of examination fees, remedial plan or dismissal.

(b) Informal disposition of contested case. Prior to the imposition of disciplinary sanctions, remedial plan, or administrative penalties against a respondent (a licensee or a person issued a cease and desist order), the respondent shall be offered an opportunity to attend an informal conference and show compliance with all requirements of law, in accordance with the APA.

  (1) Informal conferences shall be attended by the executive director, the board's legal counsel, the two members of the Investigation-Enforcement Committee, a public member, and other representatives of the board as the executive director and legal counsel may deem necessary for the proper conduct of the conference. The respondent and/or the authorized representative may attend the informal conference and shall be provided an opportunity to be heard.

  (2) In any case where charges are based upon information provided by a person who filed a complaint with the board (complainant), the complainant may attend the informal conference, and shall be provided with an opportunity to be heard. Nothing herein requires a complainant to attend an informal conference.

  (3) Notice of the informal conference shall include:

    (A) a statement of the legal authority, jurisdiction, and alleged conduct under which the enforcement action is based, with a reference to the particular section(s) of the statutes and rules involved;

    (B) an offer for the respondent to attend an informal conference at a specified time and place and show compliance with all requirements of law, in accordance with Chapter 2001 of the Administrative Procedure Act;

    (C) a statement that the respondent has an opportunity for a hearing before the State Office of Administrative Hearings on the allegations; and

    (D) the following statement in capital letters in 12 point boldface type: FAILURE TO RESPOND TO THE ALLEGATIONS, BY EITHER PERSONAL APPEARANCE AT THE INFORMAL CONFERENCE OR IN WRITING, WILL RESULT IN THE ALLEGATIONS BEING ADMITTED AS TRUE AND THE RECOMMENDED SANCTION MADE AT THE INFORMAL CONFERENCE BEING GRANTED BY DEFAULT. The notice shall be served by delivering a copy to the respondent or licensee in person, by courier receipted delivery, or by certified or registered mail, return receipt requested, to the licensee's last known address of record as shown by agency records, not less than 10 days prior to the date of the conference.

  (4) The respondent shall respond by either personal appearance at the informal conference or in writing no later than the date of the informal conference. If the respondent chooses to respond in writing, the response shall admit or deny each of the allegations. If the respondent intends to deny only a part of an allegation, the respondent shall specify so much of it is true and shall deny only the remainder. The response shall also include any other matter, whether of law or fact, upon which the respondent intends to rely for his or her defense. If the respondent fails to respond to the notice specified in this subsection, the matter will be considered as a default case and the respondent will be deemed to have:

    (A) admitted all the factual allegations in the notice specified in this subsection;

    (B) waived the opportunity to show compliance with the law;

    (C) waived notice of a hearing;

    (D) waived the opportunity for a hearing on the allegations; and

    (E) waived objection to the recommended sanctions made at the informal conference.

  (5) The Investigation-Enforcement Committee may recommend that the board enter a default order, based upon the allegations set out in the notice specified in this subsection, adopting the recommended sanctions made at the informal conference. Upon consideration of the case, the Board may enter a default order under §2001.056 of the Administrative Procedure Act or direct that the case be set for a hearing at the State Office of Administrative Hearings.

  (6) Any default judgment granted under this section will be entered on the basis of the factual allegations in the notice and upon proof of proper notice to the respondent's address of record as specified in paragraph (3) of this subsection.

  (7) A motion for rehearing which requests that the Board vacate its default order under this section shall be granted if the motion presents convincing evidence that the failure to respond to the notice specified in this subsection was not intentional or the result of conscious indifference, but due to accident or mistake, provided that the respondent has a meritorious defense to the factual allegations contained in the notice specified in this subsection and the granting thereof will not result in delay or injury to the public or the Board.

  (8) Informal conferences shall not be deemed to be meetings of the board and no formal record of the proceedings at the conferences shall be made or maintained.

  (9) The Investigation-Enforcement Committee shall consider the Penalty Schedule in §277.6 of this title (Rule 277.6) to determine the parameters of any administrative fine or penalty to recommend to the respondent and the Board. The Investigation-Enforcement Committee may recommend a settlement to the respondent that includes an agreed order to refund all or part of the examination fee paid by the complainant to the respondent. This settlement must be approved by the Board pursuant to subsection (b)(10).

  (10) Any proposed order shall be presented to the board for its review. At the conclusion of its review, the board shall approve, amend, or disapprove the proposed order. Should the board approve the proposed order, the appropriate notation shall be made in the minutes of the board and the proposed order shall be entered as an official action of the board. Should the board amend the proposed order, the executive director shall contact the respondent to seek concurrence. If the respondent does not concur, the provisions of the next sentence shall apply. Should the board disapprove the proposed order, the case shall be rescheduled for purposes of reaching an agreed order or in the alternative forwarded to the State Office of Administrative Hearings for formal action.

(c) Formal disposition of a contested case. All contested cases not resolved by informal conference shall be referred to the State Office of Administrative Hearings.

  (1) Notice. The respondent shall be entitled to reasonable notice of not less than 10 days. Notice shall include the matters specifically required by the APA, to wit:

    (A) a statement of the time, place, and nature of the hearing;

    (B) a statement of the legal authority and jurisdiction under which the hearing is being held;

    (C) a reference to the particular section of the Act and rules involved; and

    (D) a short and plain statement of the matters asserted.

  (2) Service of notice. The notice of hearing and a copy of the formal complaint shall be served on the respondent's last known address at least 10 days prior to the hearing. Service on the respondent shall be complete and effective if the document to be served is sent by registered or certified mail to the respondent at the address shown on the respondent's annual renewal certificate.

  (3) Filing of documents. All pleadings and motions relating to any contested case pending before the State Office of Administrative Hearings shall be filed with the State Office of Administrative Hearings. They shall be deemed filed only when actually received.

  (4) Motion for continuance. Continuances may be granted by the State Office of Administrative Hearings in accordance with procedural rules established by that agency.

  (5) Transcription. Proceedings, or any part of them, must be transcribed on the written request of any party. The agency may pay the cost of the transcript or assess the cost to one or more parties.

  (6) Discovery. Requests for the issuance of subpoenas, requests for depositions and for production of documents, and other discovery matters shall be governed by the APA.

(d) If, after receiving notice of hearing, a party fails to appear in person or by representative on the day and time set for hearing, the Administrative Law Judge may proceed in that party's absence and, as authorized by applicable law, may issue a proposal for decision or order against the defaulting party in which the factual allegations against that party in the notice of hearing are deemed admitted as true without the requirement of submitting additional proof.

(e) Any default judgment entered under this section shall be issued only upon adequate proof that proper notice was provided to the defaulting party, and such notice includes disclosure, in 12 point, bold-faced type, of the fact that upon failure of the party to appear at the hearing, the factual allegations in the notice will be deemed admitted as true, and the relief sought in the notice of hearing may be granted by default. Proper notice may be established by proof that the Board complied with subsections (c)(1) and (2) of this section.

(f) This section does not preclude the agency from informally disposing of a case by default under the agency's statute or rules in the event the respondent fails to file a timely written response or other responsive pleading required by the agency's statute or rules.


Source Note: The provisions of this §277.2 adopted to be effective August 11, 1983, 8 TexReg 2934; amended to be effective January 7, 1994, 18 TexReg 9931; amended to be effective August 2, 1998, 23 TexReg 7564; amended to be effective September 19, 2004, 29 TexReg 8812; amended to be effective March 23, 2006, 31 TexReg 2159; amended to be effective March 23, 2014, 39 Texeg 2079

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