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RULE §349.375Decision of the Board

(a) Except as to those matters expressly delegated to the Executive Director for ratification, the Board may make final decisions in all matters relating to disciplinary action.

(b) Any party of record who is adversely affected by the proposal for decision of the judge shall have the opportunity to file exceptions and a brief to the proposal for decision within 15 days after the date of service of the proposal for decision. A reply to the exceptions may be filed by the other party within 15 days of the filing of the exceptions. Exceptions and replies shall be filed with the judge and copies served on the opposing party. The proposal for decision may be amended by the judge pursuant to the exceptions, replies or briefs submitted by the parties without again being served on the parties.

(c) The proposal for decision may be acted on by the Board after the expiration of 10 days from the date of filing of replies to exceptions to the proposal for decision or upon the day following the day exceptions or replies to exceptions are due if no such exceptions or replies are filed.

(d) It is the policy of the Board to change a finding of fact or conclusion of law in a proposal for decision or to vacate or modify the proposed order of a judge when the Board determines that:

  (1) the judge did not properly apply or interpret applicable law, agency rules, written policies provided by staff or prior administrative decisions;

  (2) a prior administrative decision on which the judge relied is incorrect or should be changed; or

  (3) a technical error in a finding of fact should be changed.

(e) If the Board modifies, amends or changes the recommended order of the judge, an order shall be prepared reflecting the Board's changes as stated in the record of the meeting and stating the specific reason and legal basis for the changes made under subsection (d) of this section.

(f) An order of the Board shall be in writing and may be signed by the Executive Director on behalf of the Board.

(g) A copy of the order shall be mailed to the Certified Officer at the most recent address of record with the Commission.

(h) The decision of the Board is immediate, final and appealable upon the signing of the written order by the Executive Director on behalf of the Board where:

  (1) the Board finds and states in the order that an imminent peril to the public health, safety or welfare requires immediate effect of the order; and

  (2) the order states it is final and effective on the date rendered.

(i) A motion for rehearing shall not be a prerequisite for appeal of the decision where the order of the Board contains the finding set forth in subsection (h) of this section.

(j) Motions for rehearing are governed by §2001.145 of the Texas Government Code Annotated.

Source Note: The provisions of this §349.375 adopted to be effective May 1, 2010, 35 TexReg 3289

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