In determining the proper disposition of a formal complaint
pending as of or filed after the effective date of this rule, 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 rule
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;
(ii) A revocation;
(iii) Remedial measures;
(iv) Required promulgation, adoption and implementation
of written, preventative policies or procedures addressing specific
areas of professional practice;
(v) A probationary period with provisions for monitoring
the Respondent's practice;
(vi) Restrictions on the Respondent's ability to sponsor
any appraiser trainees;
(vii) 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
(viii) Up to $1,500 in administrative penalties per
act or omission which constitutes a violation(s) of the Act, Board
rules, or USPAP, up to the maximum $5,000 statutory limit per complaint
matter.
(D) 2nd 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;
(iii) Contingent dismissal with remedial measures;
or
(iv) 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;
Cont'd... |
