| (a) Informal disposition of any contested case involving
a respondent may be made through an informal conference pursuant to
Texas Occupations Code, §1101.660.
(b) A respondent may request an informal conference;
however, the decision to hold a conference shall be made by the Director
of Enforcement.
(c) An informal conference shall be voluntary and shall
not be a prerequisite to a formal hearing.
(d) An informal conference may be conducted in person
or by electronic, telephonic, or written communication.
(e) The Director of Enforcement or the director's designee
shall decide upon the time, date, and place of the informal conference
and provide written notice to the respondent. Notice shall be provided
by certified mail no less than ten days prior to the date of the conference
to the last known mailing address of the respondent. The ten days
shall begin on the date of mailing. The respondent may waive the ten-day
notice requirement.
(f) A copy of the Commission's rules concerning informal
conferences shall be enclosed with the notice of the informal conference.
The notice shall inform the respondent of the following:
(1) that the respondent may be represented by legal
counsel;
(2) that the respondent may offer documentary evidence
as may be appropriate;
(3) that at least one public member of the Commission
shall be present;
(4) that two staff members, including the staff attorney
assigned to the case, with experience in the regulatory area that
is the subject of the proceedings, shall be present;
(5) that the respondent's attendance and participation
is voluntary; and
(6) that the complainant involved in the alleged violations
may be present.
(g) The notice of the informal conference shall be
sent to the complainant at their last known mailing address. The complainant
shall be informed that they may appear in person or may submit a written
statement for consideration at the informal conference.
(h) The conference shall be informal and need not follow
the procedures established in this chapter for contested cases and
formal hearings.
(i) The respondent, the respondent's attorney, the
Commission member, and the staff members may question the respondent
or complainant, make relevant statements, present statements of persons
not in attendance, and present such other evidence as may be appropriate.
(j) The staff attorney assigned to the case shall attend
each informal conference. The Commission member or other staff member
may call upon the attorney at any time for assistance in the informal
conference.
(k) No formal record of the proceedings of the informal
conference shall be made or maintained.
(l) The complainant may be excluded from the informal
conference except during the complainant's oral presentation. The
respondent, the respondent's attorney, and Commission staff may remain
for all portions of the informal conference, except for consultation
between the Commission member and Commission staff.
(m) The complainant shall not be considered a party
in the informal conference but shall be given the opportunity to be
heard if the complainant attends. Any written statement submitted
by the complainant shall be reviewed at the conference.
(n) At the conclusion of the informal conference, the
Commission member or staff members may propose an informal settlement
of the contested case. The proposed settlement may include administrative
penalties or any disciplinary action authorized by the Act. The Commission
member or staff members may also recommend that no further action
be taken.
(o) The respondent may either accept or reject the
proposed settlement recommendations at the conference. If the proposed
settlement recommendations are accepted, a proposed agreed order shall
be prepared by the staff attorney and forwarded to the respondent.
The order shall contain agreed findings of fact and conclusions of
law. The respondent shall execute the proposed agreed order and return
the executed order to the Commission not later than the 10th day after
their receipt of the proposed agreed order. If the respondent fails
to sign and return the executed proposed agreed order within the stated
time period, the inaction shall constitute rejection of the proposed
settlement recommendation.
(p) If the respondent rejects the proposed settlement
recommendation, the matter shall be referred to the Director of Enforcement
for appropriate action.
(q) If the respondent signs and accepts the proposed
agreed order, it shall be signed by the staff attorney and submitted
to the Executive Director for approval.
(r) If the Executive Director does not approve a proposed
agreed order, the respondent shall be so informed and the matter shall
be referred to the Director of Enforcement for other appropriate action.
(s) A license holder's opportunity for an informal
conference under this subchapter shall satisfy the requirements of
the APA, §2001.054(c).
(t) The Commission may order a license holder to pay
a refund to a consumer as provided in an agreement resulting from
an informal conference instead of or in addition to imposing an administrative
penalty pursuant to Texas Occupations Code, §1101.659. The amount
of a refund ordered as provided in an agreement resulting from an
informal settlement conference may not exceed the amount the consumer
paid to the license holder for a service regulated by the Act and
this title. The Commission may not require payment of other damages
or estimate harm in a refund order.
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