| (a) A person who seeks to file a complaint alleging
a statutory or rule violation arising out of or related to a court
ordered evaluation (e.g. child custody evaluation, adoption evaluation,
competency or insanity evaluation, psychological evaluation) must,
in addition to submitting a Council-approved complaint form, comply
with the requirements of this rule when filing a complaint. This rule
does not apply to evaluations conducted in administrative proceedings
before a state or federal agency.
(b) A complaint subject to this rule may not be filed
prior to entry of judgment or final order by the trial court, or alternatively,
prior to dismissal of the case. A complaint received by the Council
prior to these specified events will be dismissed by staff as premature.
A complaint dismissed as premature may be resubmitted as a new complaint
upon the occurrence of one of these events.
(c) A complaint subject to this rule will be considered
timely filed if brought within the time period specified by the general
rule governing timeliness of complaints or within one year of the
relevant event specified in subsection (b) of this section, whichever
is greater.
(d) A complaint subject to this rule must include the
following documentation or information:
(1) A copy of the court order appointing the licensee
to conduct the evaluation, or alternatively, a transcript or excerpt
therefrom or written statement from an attorney-of-record in the case
reflecting the licensee's appointment;
(2) A copy of the licensee's expert report, or a statement
that no such report was produced or provided;
(3) A copy of any judgment, final order, or dismissal
entered by the trial court; and
(4) A copy of any documents provided by the licensee
describing the costs of services, the nature of the services provided,
as well as any limitations associated with those services, or a statement
that no such documents were provided.
(e) A complaint that does not substantially comply
with subsection (d) of this section shall be dismissed by agency staff.
A complaint may be held open for no more than 30 days following notice
to the complainant regarding any such deficiency, after which, agency
staff shall dismiss the complaint if the deficiency is not cured.
(f) A complaint subject to this rule shall be dismissed
unless the complainant can show:
(1) The licensee was disqualified or struck as an expert
witness by the trial court;
(2) The licensee's opinion or inferences (i.e. testimony
or report) complained of were ruled inadmissible by the trial court;
(3) A curriculum vitae and written report by an expert
that provides a fair summary of the expert's opinions regarding the
applicable law governing the licensee's expert opinion or report (i.e.
standard of care) and the manner in which the licensee failed to meet
the requirements of the applicable law. The report must come from
an expert qualified to render an expert opinion under Texas law on
the relevant subject;
(4) A letter from an attorney licensed to practice
law in Texas setting forth the applicable law governing the licensee's
expert opinion or report and reflecting an opinion as to the manner
in which the licensee failed to meet the requirements of the applicable
law; or
(5) The agency would be likely to prevail at a hearing
before SOAH based upon the information provided.
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