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RULE §281.60General Guidance

(a) This subchapter is promulgated to:

  (1) promote consistency and guidance in the exercise of sound discretion by the agency in licensure and disciplinary matters;

  (2) provide notice as to the types of conduct that constitute violations of the Act and as to the disciplinary action that may be imposed; and

  (3) provide a framework of analysis for administrative law judges in making recommendations in licensure and disciplinary matters.

(b) Board's role. The board shall render the final decision in a contested case and has the responsibility to assess sanctions against licensees who are found to have violated the Act. The board welcomes recommendations of administrative law judges as to the sanctions to be imposed, but the board is not bound by such recommendations. A sanction should be consistent with sanctions imposed in other similar cases and should reflect the board's determination of the seriousness of the violation and the sanction required to deter future violations. A determination of the appropriate sanction is reserved to the board. The appropriate sanction is not a proper finding of fact or conclusion of law. This subchapter shall be construed and applied so as to preserve board member discretion in the imposition of sanctions and remedial measures pursuant to the APA and the Act's provisions related to types of discipline and administrative penalties. This subchapter shall be further construed and applied so as to be consistent with the Act, and shall be limited to the extent as otherwise proscribed by statute and board rule.

(c) Purpose of guidelines. These guidelines are designed to provide guidance in assessing sanctions for violations of the Act. The ultimate purpose of disciplinary sanctions is to protect and inform the public, deter future violations, offer opportunities for rehabilitation, if appropriate, punish violators, and deter others from violations. These guidelines are intended to promote consistent sanctions for similar violations, facilitate timely resolution of cases, and encourage settlements.

  (1) The standard sanctions outlined in the subchapter apply to cases involving a single violation of the Act, and in which there are no aggravating factors that apply. The board may impose more restrictive sanctions when there are multiple violations of the Act. In cases which do not have standard sanctions outlined in the subchapter, the board may consider any aggravating and/or mitigating factors listed in §281.62 of this title (relating to Aggravating and Mitigating Factors) that are found to apply in a particular case.

  (2) The standard and minimum sanctions outlined in the subchapter are applicable to first time violators. The board shall consider revoking the person's license if the person is a repeat offender.

  (3) The maximum sanction in all cases is revocation of the licensee's license, which may be accompanied by an administrative penalty of up to $5,000 per violation. Each day the violation continues is a separate violation.

  (4) Each statutory violation constitutes a separate offense, even if arising out of a single act.

Source Note: The provisions of this §281.60 adopted to be effective September 3, 2006, 31 TexReg 6722; amended to be effective December 7, 2010, 35 TexReg 10689

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