| (a) Receipt of a Complaint Intake Form by the Board
does not constitute the filing of a formal complaint by the Board
against the individual named on the Complaint Intake Form. Upon receipt
of a signed Complaint Intake Form, staff shall:
(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 Act, Board rules, or USPAP
that:
(1) evidence serious deficiencies, including:
(A) Fraud;
(B) Identity theft;
(C) Unlicensed activity;
(D) Ethical violations;
(E) Failure to properly supervise an appraiser trainee;
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) The Board or the Commissioner may delegate to staff
the duty to dismiss complaints. The complaint shall be dismissed with
no further processing if the staff determines at any time that:
(1) the complaint is not within the Board's jurisdiction;
(2) no violation exists; or
(3) an allegation or formal complaint is inappropriate
or without merit.
(d) A determination that an allegation or complaint
is inappropriate or without merit includes a determination that the
allegation or complaint:
(1) was made in bad faith;
(2) filed for the purpose of harassment;
(3) to gain a competitive or economic advantage; or
(4) lacks sufficient basis in fact or evidence.
(e) Staff shall conduct a preliminary inquiry to determine
if dismissal is required under subsection (d) of this section.
(f) A complaint alleging mortgage fraud or in which
mortgage fraud is suspected:
(1) may be investigated covertly; and
(2) shall be referred to the appropriate prosecutorial
authorities.
(g) Staff may request additional information from any
person, if necessary, to determine how to proceed with the complaint.
(h) As part of a preliminary investigative review,
a copy of the Complaint Intake Form and all supporting documentation
shall be sent to the Respondent unless the complaint qualifies for
covert investigation and the TALCB Division deems covert investigation
appropriate.
(i) 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.
(j) The Respondent shall 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 shall include the following:
(1) a copy of the appraisal report that is the subject
of the complaint;
(2) a copy of the Respondent's work file associated
with the appraisal(s) listed in the complaint, with the following
signed statement attached to the work file(s) : I SWEAR AND AFFIRM
THAT EXCEPT AS SPECIFICALLY SET FORTH HEREIN, THE COPY OF EACH AND
EVERY APPRAISAL WORK FILE ACCOMPANYING THIS RESPONSE IS A TRUE AND
CORRECT COPY OF THE ACTUAL WORK FILE, AND NOTHING HAS BEEN ADDED TO
OR REMOVED FROM THIS WORK FILE OR ALTERED AFTER PLACEMENT IN THE WORK
FILE.(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 work file, as long as it is conspicuously labeled
as non-work file documentation and kept separate from the work file.
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.
(k) Staff will evaluate the complaint within three
months after receipt of the response from Respondent to determine
whether sufficient evidence of a potential violation of the Act, Board
rules, or the USPAP exists to pursue investigation and possible formal
disciplinary action. If the staff determines that there is no jurisdiction,
no violation exists, there is insufficient evidence to prove a violation,
or the complaint warrants dismissal, including contingent dismissal,
under subsection (m) of this section, the complaint shall be dismissed
with no further processing.
(l) A formal complaint will be opened and investigated
by a staff investigator or peer investigative committee, as appropriate,
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.
(m) Written notice that a formal complaint has been
opened will be sent to the Complainant and Respondent.
(n) The staff investigator assigned to investigate
a formal complaint shall prepare a report detailing its findings on
a form approved by the Board.
(o) 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
Texas Occupations Code §1103.552, 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) A person will not be considered to have had a prior
warning letter, contingent dismissal or discipline if that prior warning
letter, contingent dismissal or discipline was issued by the Board
more than seven years before the current alleged violation occurred;
(B) Prior discipline is defined as any sanction (including
administrative penalty) received under a Board final or agreed order;
(C) A violation refers to a violation of any provision
of the Act, Board rules or USPAP;
(D) "Minor deficiencies" is defined as violations of
the Act, Board rules or USPAP which do not impact the credibility
of the appraisal assignment results, the assignment results themselves
and do not impact the license holder's honesty, integrity, or trustworthiness
to the Board, the license holder's clients, or intended users of the
appraisal service provided;
(E) "Serious deficiencies" is defined as violations
of the Act, Board rules or USPAP that:
(i) impact the credibility of the appraisal assignment
results, the assignment results themselves or do impact the license
holder's honesty, trustworthiness or integrity to the Board, the license
holder's clients, or intended users of the appraisal service provided;
or
(ii) are deficiencies done with knowledge, deliberate
or willful disregard, or gross negligence that would otherwise be
classified as "minor deficiencies";
(F) "Remedial measures" include, but are not limited
to, training, mentorship, education, reexamination, or any combination
thereof; and
(G) The terms of a contingent dismissal agreement will
be in writing and agreed to by all parties. Staff may dismiss the
complaint with a non-disciplinary warning upon written agreement that
the Respondent will complete all remedial measures within the agreed-upon
timeframe. If the Respondent fails to meet the deadlines in the agreement,
the Respondent's license or certification will be automatically set
to inactive status until the Respondent completes the remedial measures
set forth in the agreement.
(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 prior
discipline, including:
(i) Whether prior discipline concerned the same or
similar violations or facts;
(ii) The nature of the disciplinary sanctions previously
imposed; and
(iii) The length of time since the prior discipline;
(D) The difficulty or complexity of the appraisal assignment(s)
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/instance of conduct or multiple appraisals/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;
(iv) Another government agency or government sponsored
entity, including, but not limited to, the United States Department
of Veteran's Administration, the United States Department of Housing
and Urban Development, the State of Texas, Fannie Mae, and Freddie
Mac; or
(v) A consumer contemplating a real property transaction
involving the consumer's principal residence;
(H) Whether Respondent's violations caused any harm,
including financial harm, and the extent or amount of such harm;
(I) Whether Respondent acknowledged or admitted to
violations and cooperated with the Board's investigation prior to
any contested case hearing;
(J) The level of experience Respondent had in the appraisal
profession at the time of the violations, including:
(i) The level of appraisal credential Respondent held;
(ii) The length of time Respondent had been an appraiser;
(iii) The nature and extent of any education Respondent
had received related to the areas in which violations were found;
and
(iv) Any other real estate or appraisal related background
or experience Respondent had;
(K) Whether Respondent can improve appraisal skills
and reports through the use of remedial measures;
(3) The following sanctions guidelines shall be employed
in conjunction with the factors listed in paragraph (2) of this subsection
to assist in reaching the proper disposition of a formal complaint:
(A) 1st Time Discipline Level 1--violations of the
Act, Board rules, or USPAP which evidence minor deficiencies will
result in one of the following outcomes:
(i) Dismissal;
(ii) Dismissal with non-disciplinary warning letter;
or
(iii) Contingent dismissal with remedial measures.
(B) 1st Time Discipline Level 2--violations of the
Act, Board rules, or USPAP which evidence serious deficiencies will
result in one of the following outcomes:
(i) Contingent dismissal with remedial measures; or
(ii) A final order which imposes one or more of the
following:
(I) Remedial measures;
(II) Required promulgation, adoption and implementation
of written, preventative policies or procedures addressing specific
areas of professional practice;
(III) A probationary period with provisions for monitoring
the Respondent's practice;
(IV) Restrictions on the Respondent's ability to sponsor
any appraiser trainees;
(V) Restrictions on the scope of practice the Respondent
is allowed to engage in for a specified time period or until specified
conditions are satisfied; or
(VI) Up to $250 in administrative penalties per act
or omission which constitutes a violation(s) of the Act, Board rules,
or USPAP, not to exceed $3,000 in the aggregate.
(C) 1st Time Discipline Level 3--violations of the
Act, Board rules, or USPAP which evidence serious deficiencies and
were done with knowledge, deliberately, willfully, or with gross negligence
will result in a final order which imposes one or more of the following:
(i) A period of suspension;
Cont'd... |
