|(a) Unless precluded by law, informal disposition may
be made of any contested case by stipulation, agreed settlement, consent
order, default, or dismissal.
(b) Prior to the imposition of disciplinary sanction(s)
against a respondent, the board shall provide the respondent with
written notice of the matters asserted, including:
(1) a statement of the legal authority, jurisdiction,
and alleged conduct under which the enforcement action is based, with
a reference to the particular section(s) of the statutes and rules
(2) information the board staff intends to use at an
(3) an offer for the respondent to attend an informal
conference at a specified time and place and show compliance with
all requirements of law, in accordance with §2001.054(c) of the
Administrative Procedure Act;
(4) a statement that the respondent has an opportunity
for a hearing before the State Office of Administrative Hearings on
the allegations; and
(5) the following statement in capital letters in 12
point boldface type: FAILURE TO RESPOND TO THE ALLEGATIONS, BY EITHER
PERSONAL APPEARANCE AT THE INFORMAL CONFERENCE OR IN WRITING, WILL
RESULT IN THE ALLEGATIONS BEING ADMITTED AS TRUE AND THE RECOMMENDED
SANCTION MADE AT THE INFORMAL CONFERENCE BEING GRANTED BY DEFAULT.
The notice shall be served by delivering a copy to the respondent
in person, by courier receipted delivery, by first class mail, or
by certified or registered mail, return receipt requested to the respondent's
last known address of record as shown by agency records.
(c) The respondent will be provided the opportunity
to appear at an informal conference prior to a hearing at the State
Office of Administrative Hearings. The notice of the time and place
of the informal conference, along with the written notice required
in subsection (b) of this section, will be given to the respondent
at least 45 days before the date of the informal conference. If such
notice is not timely provided, the respondent may reschedule the informal
(d) The respondent shall respond either by personal
appearance at the informal conference, or by providing a rebuttal
in writing no later than 15 days before the date of the informal conference.
If the respondent chooses to respond in writing, the response shall
admit or deny each of the allegations. If the respondent intends to
deny only a part of an allegation, the respondent shall specify so
much of it is true and shall deny only the remainder. The response
shall also include any other matter, whether of law or fact, upon
which the respondent intends to rely upon as a defense. If the respondent
fails to respond to the notice specified in subsection (b) of this
section, the matter will be considered as a default case and the respondent
will be deemed to have:
(1) admitted all the factual allegations in the notice
specified in subsection (b) of this section;
(2) waived the opportunity to show compliance with
(3) waived notice of a hearing;
(4) waived the opportunity for a hearing on the allegations;
(5) waived objection to the recommended sanctions made
at the informal conference.
(e) Default orders.
(1) The informal conference panel may recommend that
the board enter a default order, based upon the allegations set out
in the notice specified in subsection (b) of this section, adopting
the recommended sanctions made at the informal conference. Upon consideration
of the case, the board may enter a default order under §2001.056
of the Administrative Procedure Act or direct that the case be set
for a hearing at the State Office of Administrative Hearings.
(2) For a contested case before the State Office of
Administrative Hearings, the judge may announce a default upon receiving
the required showing of proof to support a default, and then recess
the hearing, issue an order dismissing the case from the docket of
the State Office of Administrative Hearings, and return the file to
the board for informal disposition on a default basis in accordance
with §2001.056 of the Administrative Procedure Act. The board
may then enter a default order or direct the case back to the State
Office of Administrative Hearings.
(f) Any default judgment granted under this section
will be entered on the basis of the factual allegations in the notice
specified in subsection (b) of this section, and upon proof of proper
notice to the respondent's address of record. For purposes of this
section, proper notice means notice sufficient to meet the provisions
of §2001.054 of the Administrative Procedure Act and §281.30
of this title (relating to Pleadings and Notice in a Contested Case).
(g) A motion for rehearing which requests that the
board vacate its default order under this section shall be granted
if the motion presents convincing evidence that the failure to respond
to the notice specified in subsection (b) of this section was not
intentional or the result of conscious indifference, but due to accident
or mistake, provided that the respondent has a meritorious defense
to the factual allegations contained in the notice specified in subsection
(b) of this section and the granting thereof will not result in delay
or injury to the public or the board.
(h) Informal conferences shall be attended by the executive
director/secretary or designated representative, legal counsel of
the agency or an attorney employed by the office of the attorney general,
and other representative(s) of the agency as the executive director/secretary
and legal counsel may deem necessary for proper conduct of the conference.
The respondent and/or the respondent's authorized representative(s)
may attend the informal conference and shall be provided an opportunity
to be heard. All communications from the respondent shall be directed
to the legal counsel of the agency.
(i) In any case where charges are based upon information
provided by a person (complainant) who filed a complaint with the
board, the complainant may attend the informal conference, unless
the proceedings are confidential under §564.002 and §564.003
of the Texas Pharmacy Act or other applicable law. A complainant who
chooses to attend an informal conference shall be provided an opportunity
to be heard with regard to charges based upon the information provided
by the complainant. Nothing herein requires a complainant to attend
an informal conference.
(j) Informal conferences shall not be deemed meetings
of the board, and no formal record of the proceedings at such conferences
shall be made or maintained unless the respondent requests such a
recording in writing at least 15 days before the informal conference.
Board staff will arrange for the presence of a court reporter to make
the recording. The respondent shall be responsible for the cost of
the recording. The recording will be part of the board's investigative
file and will not be released to a third party unless authorized under §565.055
of the Act. The board will provide a copy of the recording to the
respondent upon request.
(k) Any proposed consent order shall be presented to
the board in open meeting for its review. At the conclusion of its
review, the board shall approve or disapprove the proposed consent
order. Should the board approve the proposed consent order, the appropriate
notation shall be made in minutes of the board and the proposed consent
order shall be entered as an official action of the board. Should
the board disapprove the proposed consent order, the matter shall
be scheduled for public hearing.
|Source Note: The provisions of this §281.22 adopted to be effective December 30, 1998, 23 TexReg 13073; amended to be effective December 27, 2000, 25 TexReg 12689; amended to be effective September 10, 2003, 28 TexReg 7708; amended to be effective December 4, 2005, 30 TexReg 7874; amended to be effective March 25, 2007, 32 TexReg 1508; amended to be effective September 14, 2010, 35 TexReg 8356; amended to be effective June 7, 2012, 37 TexReg 4045; amended to be effective September 9, 2012, 37 TexReg 6916; amended to be effective September 8, 2013, 38 TexReg 5721; amended to be effective December 10, 2013, 38 TexReg8833