| (a) All decisions and orders of the board pertaining
to a contested case shall be made during a public meeting duly noticed
pursuant to the Chapter 551 of the Texas Government Code (relating
to Open Meetings). The board's decisions and orders shall be in writing
and reported in the minutes of the meeting. An order of the board
shall include findings of fact and conclusions of law, separately
stated.
(b) A copy of the decision or order of the board shall
be delivered or mailed to all parties or, if represented by counsel,
to their attorney of record.
(c) The board may change a finding of fact or conclusion
of law made by the ALJ, or may vacate or modify an order issued by
the ALJ, only if the board determines:
(1) that the ALJ did not properly apply or interpret
applicable law, agency rules, written policies provided to the ALJ
with a written statement of applicable rules or policies, or prior
administrative decisions;
(2) that a prior administrative decision on which the
ALJ relied is incorrect or should be changed; or
(3) that a technical error in a finding of fact should
be changed.
(d) If the board modifies, amends, or changes the ALJ's
recommended order, an order shall be prepared reflecting the board's
changes and the board's specific reason and legal basis for the changes.
(e) A board decision or order is administratively final
when:
(1) there is no filing of a timely motion for rehearing;
or
(2) a timely motion for rehearing is filed and the
latest timely filed motion for rehearing is overruled by board order
or operation of law.
(f) The board shall make the final decision in assessing
the discipline provided for in §901.501 of the Act (relating
to Disciplinary Powers of Board) and §519.41 of this chapter
(relating to Disciplinary Powers of the Board).
(g) Interpretive comment. Section 2001.058(e) of the
APA provides the standard that a governmental agency must follow in
changing a recommendation of an ALJ of SOAH. Case law makes it clear
that the standard must be strictly adhered to in order for the change
to the recommendation to be valid. The above language in subsection
(c) of this section addresses the required standards.
|
| Source Note: The provisions of this §519.72 adopted to be effective June 9, 2004, 29 TexReg 5634; amended to be effective February 15, 2007, 32 TexReg 530; amended to be effective June 11, 2008, 33 TexReg 4505; amended to be effective February 9, 2012, 37 TexReg 495; amended to be effective December 7, 2016, 41 TexReg 9517; amended to be effective June 5, 2019, 44 TexReg 2722 |
