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) Dismiss, with or without advisement, complaints
that are meritless, non-jurisdictional, or that do not involve a threat
or potential threat to public health, safety, and welfare, 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. There is a rebuttable
presumption that the notice is received three (3) days after it was
mailed.
(B) Not later than the 20th day after the Notice of
Alleged Violation is received by the Respondent, the Respondent, in
writing, must:
(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; or
(iii) Request a contested-case hearing.
(C) Waiver and default.
(i) If, within twenty (20) days of receipt, the Respondent
fails to respond to the Notice of Alleged Violation and either accept
the proposed disciplinary action and recommended administrative penalty,
make a written request for an informal conference, or make a written
request for a contested-case hearing, the board will prepare to issue
a default order. 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
20 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 20 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 20 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 20 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.
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| 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; amended to be effective March 6, 2022, 47 TexReg 947; amended to be effective June 12, 2022, 47 TexReg 3265 |
