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TITLE 22EXAMINING BOARDS
PART 8TEXAS APPRAISER LICENSING AND CERTIFICATION BOARD
CHAPTER 159RULES RELATING TO THE PROVISIONS OF THE TEXAS APPRAISAL MANAGEMENT COMPANY REGISTRATION AND REGULATION ACT
RULE §159.204Complaint Processing
Historical Texas Register

(a) Receipt of a Complaint Intake Form by the Board does not constitute the filing of a formal complaint by the Board against the AMC named on the Complaint Intake Form. Upon receipt of a signed Complaint Intake Form, staff will:

  (1) assign the complaint a case number in the complaint tracking system; and

  (2) send written acknowledgement of receipt to the complainant.

(b) Priority of complaint investigations. The Board prioritizes and investigates complaints based on the risk of harm each complaint poses to the public. Complaints that pose a high risk of public harm include violations of the AMC Act or Board rules that:

  (1) evidence serious deficiencies, including:

    (A) Fraud;

    (B) Identity theft;

    (C) Unlicensed activity;

    (D) Ethical violations;

    (E) Violations of appraiser independence; or

    (F) Other conduct determined by the Board that poses a significant risk of public harm; and

  (2) were done:

    (A) with knowledge;

    (B) deliberately;

    (C) willfully; or

    (D) with gross negligence.

(c) If the staff determines at any time that the complaint is not within the Board's jurisdiction, or that no violation exists, the complaint will be dismissed with no further processing. The Board or the Commissioner may delegate to staff the duty to dismiss complaints.

(d) A complaint alleging mortgage fraud or in which mortgage fraud is suspected:

  (1) may be investigated covertly; and

  (2) will be referred to the appropriate prosecutorial authorities.

(e) Staff may request additional information necessary to determine how to proceed with the complaint from any person.

(f) As part of a preliminary investigative review, a copy of the Complaint Intake Form and all supporting documentation will be sent to the Respondent unless the complaint qualifies for covert investigation and the Standards and Enforcement Services Division deems covert investigation appropriate.

(g) The Board will:

  (1) protect the complainant's identity to the extent possible by excluding the complainant's identifying information from a complaint notice sent to a respondent.

  (2) periodically send written notice to the complainant and each respondent of the status of the complaint until final disposition. For purposes of this subsection, "periodically" means at least once every 90 days.

(h) The Respondent must submit a response within 20 days of receiving a copy of the Complaint Intake Form. The 20-day period may be extended for good cause upon request in writing or by e-mail. The response must include the following:

  (1) A copy of the appraisal report(s), if any, that is (are) the subject of the complaint;

  (2) A copy of the documents or other business records associated with the appraisal report(s), incident(s), or conduct listed in the complaint, with the following signed statement attached to the response: I SWEAR AND AFFIRM THAT EXCEPT AS SPECIFICALLY SET FORTH HEREIN, THE COPY OF EACH AND EVERY BUSINESS RECORD ACCOMPANYING THIS RESPONSE IS A TRUE AND CORRECT COPY OF THE ACTUAL BUSINESS RECORD, AND NOTHING HAS BEEN ADDED TO OR REMOVED FROM THIS BUSINESS RECORD OR ALTERED. (SIGNATURE OF RESPONDENT);

  (3) A narrative response to the complaint, addressing each and every item in the complaint;

  (4) A list of any and all persons known to the Respondent to have actual knowledge of any of the matters made the subject of the complaint and, if in the Respondent's possession, contact information;

  (5) Any documentation that supports Respondent's position that was not in the original documentation, as long as it is conspicuously labeled as additional documentation and kept separate from the original documentation. The Respondent may also address other matters not raised in the complaint that the Respondent believes need explanation; and

  (6) a signed, dated and completed copy of any questionnaire sent by Board staff.

(i) Staff will evaluate the complaint within three months of receipt of the response from Respondent to determine whether sufficient evidence of a potential violation of the AMC Act, Board rules or USPAP exists to pursue investigation and possible formal disciplinary action. If staff determines there is no jurisdiction, no violation exists, or there is insufficient evidence to prove a violation, or the complaint warrants dismissal, including contingent dismissal, under subsection (m) of this section, the complaint will be dismissed with no further processing.

(j) A formal complaint will be opened and investigated by a staff investigator or peer investigative committee if:

  (1) the informal complaint is not dismissed under subsection (i) of this section; or

  (2) staff opens a formal complaint on its own motion.

(k) Written notice that a formal complaint has been opened will be sent to the Complainant and Respondent.

(l) The staff investigator or peer investigative committee assigned to investigate a formal complaint will prepare a report detailing all findings.

(m) In determining the proper disposition of a formal complaint pending as of or filed after the effective date of this subsection, and subject to the maximum penalties authorized under Chapter 1104, Texas Occupations Code, staff, the administrative law judge in a contested case hearing and the Board shall consider the following sanctions guidelines and list of non-exclusive factors as demonstrated by the evidence in the record of a contested case proceeding.

  (1) For the purposes of these sanctions guidelines:

    (A) An AMC will not be considered to have had a prior warning letter, contingent dismissal or discipline if that prior warning letter, contingent dismissal or discipline occurred more than ten years ago;

    (B) A prior warning letter, contingent dismissal or discipline given less than ten years ago will not be considered unless the Board took final action against the AMC before the date of the incident that led to the subsequent disciplinary action;

    (C) Prior discipline is defined as any sanction, including an administrative penalty, received under a Board final or agreed order;

    (D) A violation refers to a violation of any provision of the AMC Act, Board rules, or USPAP;

    (E) "Minor deficiencies" is defined as violations of the AMC Act, Board rules, or USPAP which do not call into question the qualification of the AMC for licensure in Texas;

    (F) "Serious deficiencies" is defined as violations of the Act, Board rules or USPAP which do call into question the qualification of the AMC for licensure in Texas;

    (G) "Remedial measures" include training, auditing, or any combination thereof; and

    (H) The terms of a contingent dismissal agreement will be in writing and agreed to by all parties. If Respondent completes all remedial measures required in the agreement within a certain prescribed period of time, the complaint will be dismissed with a non-disciplinary warning letter.

  (2) List of factors to consider in determining proper disposition of a formal complaint:

    (A) Whether the Respondent has previously received a warning letter or contingent dismissal, and if so, the similarity of facts or violations in that previous complaint to the facts or violations in the instant complaint matter;

    (B) Whether the Respondent has previously been disciplined;

    (C) If previously disciplined, the nature of the discipline, including:

      (i) Whether it concerned the same or similar violations or facts;

      (ii) The nature of the disciplinary sanctions imposed;

      (iii) The length of time since the previous discipline;

    (D) The difficulty or complexity of the incident at issue;

    (E) Whether the violations found were of a negligent, grossly negligent or a knowing or intentional nature;

    (F) Whether the violations found involved a single appraisal or instance of conduct or multiple appraisals or instances of conduct;

    (G) To whom were the appraisal report(s) or the conduct directed, with greater weight placed upon appraisal report(s) or conduct directed at:

      (i) A financial institution or their agent, contemplating a lending decision based, in part, on the appraisal report(s) or conduct at issue;

      (ii) The Board;

      (iii) A matter which is actively being litigated in a state or federal court or before a regulatory body of a state or the federal government;

Cont'd...

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