|(a) After a proposal for decision has been issued by
an administrative law judge, the Board will render the final decision
in the contested case or remand the proceeding for further consideration
by the administrative law judge.
(b) The Board is responsible for imposing disciplinary
action and/or assessing administrative penalties, if any, against
a respondent who is found to have violated any of the Board's statutes
or rules. The Board welcomes recommendations from an administrative
law judge as to the sanctions to be imposed, but the Board is not
required to give presumptively binding effect to the judge's recommendations
and is not bound by such recommendations.
(c) If the Board remands the case to the administrative
law judge, the Board may direct that further consideration be accomplished
with or without reopening the hearing and may limit the issues to
be considered. If, on remand, additional evidence is admitted that
results in a substantial revision of the proposal for decision, or
the underlying facts, an amended or supplemental proposal for decision
shall be prepared by the administrative law judge and the provisions
of this subchapter shall apply. Exceptions and replies shall be limited
to items contained in the supplemental proposal for decision.
(d) The proposal for decision may be acted upon by
the Board after the expiration of the applicable time periods for
filing exceptions and replies to exceptions, and after the administrative
law judge has ruled on any exceptions and replies.
(e) Any party may request oral arguments before the
Board prior to the final disposition of the contested case. If the
Board grants oral argument, oral argument will be conducted in accordance
with this subsection.
(1) The chairperson or the Board 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.
(2) The hearing on the proposal for decision shall
be limited to the record. New evidence may not be presented on the
substance of the case unless the party submitting the evidence 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.
(3) In presenting oral arguments, the party bearing
the burden of proof shall open and close. The party responding may
offer rebuttal arguments. Parties may request an opportunity for additional
rebuttal subject to the discretion of the presiding member.
(4) After being recognized by the presiding member,
the members of the Board 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 record and to the arguments
made by the parties.
(5) Upon the conclusion of oral arguments, questions
by the members of the Board, and any discussion by the member of the
Board, the presiding member shall call for a motion regarding disposition
of the contested case. 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.
(f) Final orders on contested cases shall be in writing
and signed by the presiding officer of the Board. Final orders shall
include findings of fact and conclusions of law separately stated
from disciplinary actions imposed and administrative penalties assessed.
Parties shall be notified as provided in Chapter 2001, Texas Government
Code. On written request, a copy of the decision or order shall be
delivered or mailed to any party and to the respondent's attorney
(g) The Board may change a finding of fact or conclusion
of law in a proposal for decision when the Board determines:
(1) that the judge did not properly apply or interpret
applicable law, agency rules, written policies provided by staff or
prior administrative decisions;
(2) that a prior administrative decision on which the
judge relied is incorrect or should be changed; or
(3) that a technical error in a finding of fact should
(h) If the Board modifies, amends, or changes a finding
of fact or conclusion of law in a proposal for decision, the order
shall reflect the Board's changes as stated in the record of the meeting
and state the specific reason and legal basis for the changes.
(i) If the Board does not follow the recommended disciplinary
action and/or administrative penalty in a proposal for decision, the
order shall explain why the Board chose not to follow the recommendation
as stated in the record of the meeting.
(j) Imminent Peril. If the Board finds that an imminent
peril to the public health, safety, or welfare requires immediate
effect on a final decision or order in a contested case, it shall
recite the factual and legal basis for its finding in the decision
or order as well as the fact that the decision or order is final and
effective on the date rendered, in which event the decision or order
is final and appealable on the date rendered, and no motion for rehearing
is required as a prerequisite for appeal.
(k) Conflict of Interest. A Board member shall recuse
himself or herself from all deliberations and votes regarding any
(1) the Board member reviewed as a member of a Peer
(2) involving persons or transactions about which the
Board member has a conflict of interest;
(3) involving persons or transactions related to the
Board member sufficiently closely as to create the appearance of a
conflict of interest; or
(4) in which the Board member participated in the negotiation
of a consent order.
|Source Note: The provisions of this §157.17 adopted to be effective January 9, 2008, 33 TexReg 178; amended to be effective July 21, 2008, 33 TexReg 5694; amended to be effective November 9, 2008, 33 TexReg 8944; amended to be effective December 4, 2012, 37 TexReg 9507; amended to be effective June 8, 2014, 39 TexReg 4254; amended to be effective January 1, 2016, 40 TexReg 8897; amended to be effective December 10, 2017, 42 TexReg 6925