| (a) General. After receipt of notice of alleged violations
of laws or rules administered or enforced by the commission and its
staff, the holder of the certificate, applicant, or regulated entity
may request a conference with the commission's staff for the purpose
of showing compliance with all requirements of law, or to discuss
informal disposition of any complaint or contested case.
(b) Representation. The certificate holder, applicant
or regulated entity may be represented by counsel or by a representative
of his or her choice. The commission shall be represented by one or
more members of its staff and by commission legal counsel.
(c) Informal Proceedings. The conference shall be informal,
and will not follow procedures for contested cases. The commission's
representative(s) may prohibit or limit attendance by other persons;
may prohibit or limit access to the commission's investigative file
by the licensee, the licensee's representative, and the complainant,
if present; and may record part or all of the staff conference. At
the discretion of the commission's representative(s), the licensee,
the licensee's representative, and the commission staff may question
witnesses; make relevant statements; and present affidavits, reports,
letters, statements of persons not in attendance, and such other evidence
as may be appropriate.
(d) Settlement Conference. At the discretion of the
commission's representative(s), the preliminary staff conference may
be concluded and a settlement conference initiated to discuss staff
recommendations for informal resolution of the issues. Such recommendations
may include any disciplinary actions authorized by law, including
administrative penalties, restitution, remedial actions, or such reasonable
restrictions that may be in the public interest. These recommendations
may be modified by the commission's representative(s) based on new
information, a change of circumstances, or to expedite resolution
in the interest of protecting the public. The commission's representative(s)
may also recommend that the investigation be closed or referred for
further investigation.
(e) Proposed Consent Order. The licensee may accept
or reject the settlement recommendations of the commission staff.
If the licensee accepts the recommendations, the licensee shall execute
a settlement agreement in the form of a proposed consent order as
soon thereafter as practicable. If the licensee rejects the proposed
agreement, the matter may be scheduled for a hearing as described
in Subchapter F of this chapter.
(f) Approval of Consent Order. Following acceptance
and execution of the settlement agreement recommended by staff, said
proposed agreement shall be submitted to the Agency Chief for approval.
If the order is approved, it shall be signed by the Agency Chief.
If the proposed order is not approved, the licensee shall be so informed
and the matter shall be referred to the commission staff for appropriate
action to include dismissal, closure, further negotiation, further
investigation, or a formal hearing.
(g) Preliminary Notice. A revocation, suspension, annulment,
denial, or withdrawal of a certificate or license is not effective
unless, before the institution of contested case proceedings, the
holder of the certificate receives preliminary notice of the facts
or conduct alleged to warrant the intended action and an opportunity
to show compliance with all requirements of law.
(h) Request for Formal Hearing. Except as otherwise
provided by law, if an applicant's original application or request
for a certificate is denied, he or she shall have 30 days from the
date of denial to make a written request for a formal hearing, and
if so requested, the formal hearing will be granted and the provisions
of the APA and this chapter with regard to contested cases shall apply.
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| Source Note: The provisions of this §401.41 adopted to be effective March 8, 2001, 26 TexReg 2040; amended to be effective December 18, 2012, 37 TexReg 9778; amended to be effective February 26, 2015, 40 TexReg 826; amended to be effective January 11, 2023, 48 TexReg 51 |
