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TITLE 22EXAMINING BOARDS
PART 39TEXAS BOARD OF PROFESSIONAL GEOSCIENTISTS
CHAPTER 851TEXAS BOARD OF PROFESSIONAL GEOSCIENTISTS LICENSING AND ENFORCEMENT RULES
SUBCHAPTER DCOMPLIANCE AND ENFORCEMENT
RULE §851.158Procedures

Procedures generally. Except for a suspension under TOC §1002.403(3), the procedures for investigation and dispensation of complaints are as follows:

  (1) Staff action.

    (A) Verify that the complaint meets legal requirements;

    (B) Verify the identity of the complainant (if complaint is not notarized);

    (C) Open complaint and set up complaint record;

    (D) Review complaint for TBPG jurisdiction;

    (E) Review for imminent danger to the public health, safety, or welfare;

    (F) Prioritize complaint as required by TOC §1002.154;

    (G) Provide acknowledgement and notification to complainant;

    (H) Investigate complaint and complete confidential investigation report; and

    (I) May dismiss, with or without advisement, complaints that are meritless, non-jurisdictional, or that do not involve a threat or potential threat to public health or safety, with the exception of complaints that involve violations of the continuing education requirement.

  (2) Complaint review team. Review complaint and investigation with the possible outcomes of:

    (A) Recommend to the Appointed Board that the complaint be dismissed (with or without non-disciplinary advisory or warning);

    (B) Refer the complaint back to staff for further investigation; or

    (C) Issue notice of alleged violation-proposed finding of violation and proposed disciplinary action.

  (3) Notice of alleged violation.

    (A) The notice of alleged violation will state the authority of the TBPG to enforce the Act and take disciplinary action, the facts or conduct alleged to warrant disciplinary action, identify the proposed disciplinary action, provide the opportunity for an informal conference to show compliance with all requirements of law, and provide the opportunity for a contested-case hearing.

    (B) The notice of alleged violation will provide three options:

      (i) Accept the proposed findings and proposed disciplinary action, and waive the right to an informal conference, contested-case hearing, and judicial review, by signing and returning the enclosed proposed Board order;

      (ii) Request an informal conference and a contested-case hearing; and

      (iii) Request a contested-case hearing.

    (C) Waiver and default.

      (i) To proceed to issue a default order, the notice of alleged violation must state the following in capital letters in at least 12-point bold-face type: FAILURE TO TIMELY RESPOND TO THIS NOTICE BY TIMELY REQUESTING EITHER AN INFORMAL CONFERENCE AND A CONTESTED-CASE HEARING OR A CONTESTED-CASE HEARING WILL RESULT IN THE ALLEGATIONS BEING ADMITTED AS TRUE AND THE RECOMMENDED SANCTION BEING GRANTED BY DEFAULT. YOU MUST RESPOND AND REQUEST A HEARING IN WRITING WITHIN 30 DAYS OF RECEIPT OF THIS NOTICE OR YOU WAIVE YOUR RIGHT TO A HEARING.

      (ii) Additionally, to proceed to issue a default order, the notice of alleged violation must also state the following: If you fail to request a hearing in writing within 30 days of receipt of this notice you will be deemed to have admitted the factual allegations in this notice, waived the opportunity to show compliance with the law, waived the right to a hearing, and waived objection to the recommended sanction.

      (iii) If a person fails to file a written request for a contested-case hearing within 30 days of receipt of the notice of alleged violation, the person will be deemed to have admitted the factual allegations in the notice of alleged violation, waived the opportunity to show compliance with the law, waived the right to a hearing, and waived objection to the recommended sanction.

      (iv) If a person responds and waives the right to an informal conference and a contested-case hearing or fails to file a written request for either an informal conference and a contested-case hearing or a contested-case hearing within 30 days of receipt of the notice of alleged violation, the Board shall proceed to resolve the matter on an informal basis by issuing a default order.

    (D) The TBPG may serve the notice of alleged violation by sending it to the person's last known address as shown by the TBPG's records.

    (E) The notice of alleged violation shall be sent by first class or certified mail to the person's last known address as shown by the TBPG's records, and in addition should also be sent to the person's email address as shown by the TBPG's records.

  (4) Informal conference.

    (A) The informal conference will be informal and will not follow procedures for contested cases.

    (B) The informal conference panel may be composed of Board staff and Appointed Board members. The panel may limit attendance and the time allotted for the informal conference.

    (C) The informal conference is an opportunity for a person to show compliance with law. The person may speak and provide documents for the panel's consideration.

    (D) The informal conference panel may recommend proposed action to be taken by the Appointed Board. The proposed action may be different from that stated in the notice of alleged violation.

  (5) Contested-case hearing. If a person timely and properly requests a contested-case hearing, one shall be set at the State Office of Administrative Hearings.

  (6) Board order. Except for dismissals, the Appointed Board should resolve complaints by order. The Board may accept or reject any proposed order. If a proposed order is rejected, the Appointed Board may among other things dismiss the complaint, direct Board staff to modify an order and propose the modified order for later consideration, or direct that the matter be set for a contested-case hearing.

  (7) All disciplinary actions shall be permanently recorded. Except for private reprimands, all disciplinary actions shall be placed on the TBPG's website and made available upon request as public information.


Source Note: The provisions of this §851.158 adopted to be effective September 25, 2017, 42 TexReg 5143; amended to be effective October 31, 2018, 43 TexReg 7140

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