| (a) Unless otherwise authorized under subsection (f)
of this section, a final order in a contested case shall be in writing
and shall be signed by the presiding officer of the commission. Final
orders shall include findings of fact and conclusions of law separately
stated from disciplinary actions imposed and administrative penalties
assessed.
(b) If the commission modifies, amends, or changes
a finding of fact or conclusion of law in a proposal for decision,
the order shall reflect the commission's changes as stated in the
record of the meeting and state the specific reason and legal basis
for the changes made according to §533.7(c) of this chapter (relating
to Proposals for Decision). If the commission does not follow the
recommended disciplinary action and/or administrative penalty in a
proposal for decision, the order shall explain why the commission
chose not to follow the recommendation as stated in the record of
the meeting.
(c) A party notified by mail of a final decision or
order shall be presumed to have been notified on the third day after
the date on which the notice is mailed.
(d) The timely filing of a motion for rehearing is
a prerequisite to appeal.
(e) Motions for rehearing are controlled by Texas Government
Code §2001.145 and §2001.146 and this section.
(f) A motion for rehearing shall set forth the particular
finding of fact, conclusion of law, ruling, or other action which
the complaining party asserts caused substantial injustice to the
party and was in error such as violation of a constitutional or statutory
provision, lack of authority, unlawful procedure, lack of substantial
evidence, abuse of discretion, other error of law, or other good cause
specifically described in the motion. In the absence of specific grounds
in the motion, the commission shall presume that the motion should
be overruled.
(g) The chairperson or the member designated by the
chairperson to preside (the presiding member) shall announce the case.
Upon the request of any party, the presiding member may conduct a
prehearing conference with the parties and their attorneys of record.
The presiding member may announce reasonable time limits for any oral
arguments to be presented by the parties. The hearing on the motion
shall be limited to a consideration of the grounds set forth in the
motion. Testimony by affidavit or documentary evidence such as excerpts
of the record before the presiding officer may be offered in support
of, or in opposition to, the motion; provided, however, a party offering
affidavit testimony or documentary evidence must provide the other
party with copies of the affidavits or documents at the time the motion
is filed. New evidence may not be presented on the substance of the
case unless the party submitting the evidenced can establish that
the new evidence was not reasonably available at the time of the original
hearing or the party offering the evidence was misled by a party regarding
the necessity for offering the evidence at the original hearing
(h) In presenting oral arguments, the party filing
the motion will have the burden of proof and persuasion and shall
open and close. The party responding to the motion may offer rebuttal
arguments. Parties may request an opportunity for additional rebuttal
subject to the discretion of the presiding member.
(i) After being recognized by the presiding member,
the members of the commission may ask questions of the parties. If
a party is represented by counsel, the questions must be directed
to the party's attorney. Questions must be limited to the grounds
asserted for the motion to be granted and to the arguments made by
the parties.
(j) Upon the conclusion of oral arguments, questions
by the members of the commission, and any discussion by the member
of the commission, the presiding member shall call for a vote on the
motion. A member of the commission need not make a separate motion
or second a motion filed by a party. The presiding member may vote
on the motion. A motion may be granted only if a majority of the members
present and voting vote in favor of the motion. In the event of a
tie vote, the presiding member shall announce that the motion is overruled.
(k) If the commission and/or the administrator find
that an imminent peril to the public health, safety, or welfare requires
immediate effect of a final decision or order, that finding shall
be recited in the decision or order as well as the fact that the decision
or order is final and effective on the date signed, in which event
the decision or order is final and appealable on the date signed and
no motion for rehearing is required as a prerequisite for appeal.
(l) A petition for judicial review must be filed in
a District Court of Travis County Texas within 30 days after the order
is final and appealable, as provided by Texas Government Code, Title
10, Subtitle A, Chapter 2001. A party filing a petition for judicial
review must also comply with the requirements of Texas Occupations
Code, §1101.707.
(m) A party who appeals a final decision in a contested
case must pay all costs for the preparation of the original or a certified
copy of the record of the agency proceeding that is required to be
transmitted to the reviewing court.
(n) If, after judicial review, the penalty is reduced
or not assessed, the administrator shall remit to the person charged
the appropriate amount, plus accrued interest if the penalty has been
paid, or shall execute a release of the bond if a supersedeas bond
has been posted. The accrued interest on amounts remitted by the administrator
under this subsection shall be paid at a rate equal to the rate charged
on loans to depository institutions by the New York Federal Reserve
Bank, and shall be paid for the period beginning on the date that
the assessed penalty is paid to the commission and ending on the date
the penalty is remitted.
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| Source Note: The provisions of this §533.8 adopted to be effective December 30, 2007, 32 TexReg 9987; amended to be effective September 1, 2010, 35 TexReg 7797; amended to be effective November 29, 2012, 37 TexReg 9363 |
