|(a) Purpose and Reference to Applicable Law. It is
the policy of the Board to resolve contested cases efficiently by
informally disposing of matters by agreement and voluntary settlement
whenever possible, to the extent such settlement is aligned with and
will advance the Board's regulatory functions. This section implements
the Board's processes and procedures for effectuating informal disposition
of contested cases, including procedures for conducting Informal Settlement
Conferences, pursuant to §1301.5071 of the PLL. For the foregoing
reasons, and in order to advance the State's policy goals expressed
in Chapter 2009 of the Government Code (Governmental Dispute Resolution
Act) and Chapter 154 of the Civil Practice and Remedies Code to resolve
disputes as fairly and expeditiously as possible, contested cases
that the Board determines are capable of being resolved by informal
disposition and voluntary settlement will be referred to an Informal
Settlement Conference to seek such resolution.
(b) Referral to Informal Settlement Conference (ISC).
In the event an individual makes a timely request for an adjudicative
hearing in accordance with §1301.704 of the PLL and Board Rule §367.19(f),
prior to the Board docketing the matter at SOAH and setting such hearing,
the Director of Enforcement will determine whether to refer the matter
to an Informal Settlement Conference in accordance with this section.
In making such determination, the Director of Enforcement will consider:
(1) whether the complainant or the respondent has requested
an ISC in accordance with subsection (d) of this section;
(2) if an ISC is requested by the respondent, whether
the request appears to have been brought in bad faith or for purposes
of delay rather than to resolve the matter;
(3) the extent to which the contested case involves
factual matters in dispute;
(4) the extent to which a complainant or other party
has suffered damages that may be compensated through the payment of
restitution, in accordance with §1301.5071 of PLL; and
(5) in cases in which the Board seeks to suspend or
revoke a license, registration or endorsement, the extent to which
probationary restrictions might present a viable alternative to suspension
(c) Non-referral to Informal Settlement Conference.
The following contested cases are ineligible for and will not be referred
to an ISC:
(1) cases in which the Board is seeking denial of an
application for a license, registration or endorsement, or to take
an examination; and
(2) cases concerning a determination, following a request
for preliminary review of an individual's criminal background, that
an individual is ineligible for licensure.
(d) Request for Informal Settlement Conference. A complainant
or the respondent may request to refer an eligible matter to an Informal
Settlement Conference by making a written request delivered to the
Board. A request for an ISC is a factor to be considered by the Director
of Enforcement in determining whether to refer the contested case
to an ISC, but will not automatically result in referral to an ISC.
(e) Notice of Informal Settlement Conference. If a
contested case is referred to an ISC, the respondent will be provided
with at least thirty (30) days' written notice of the ISC. The Board
will contact the respondent and any other party invited to attend
for purposes of attempting to set the date and time for the ISC by
(f) Submission of Informal Settlement Conference Materials.
At least ten (10) days in advance of the Informal Settlement Conference,
the respondent must:
(1) submit all documentary evidence to be considered
by the Board at the Informal Settlement Conference not already contained
in the investigation report submitted by the Board's Field Investigator
and reviewed by the Board in initiating the contested case;
(2) submit any written accounts or witness statements
of the respondent, or any third parties, relevant to the matter, that
the respondent would like the Board to consider, signed and dated,
and sworn under oath or made by unsworn declaration in accordance
with Chapter 132 of the Civil Practice and Remedies Code; and
(3) to the extent respondent is represented by an attorney,
a letter of representation from the attorney asserting said representation.
(g) Appearance at an Informal Settlement Conference.
Appearance at an Informal Settlement Conference may be in person or
by phone. The Board may conduct the Informal Settlement Conference
by video conferencing to the extent it is determined by the Executive
Director or Director of Enforcement to be technically feasible and
(h) Appearance by the Board. An Informal Settlement
Conference is not a meeting of the members of the Board, and will
not be attended by Board members. The Executive Director and/or the
Director of Enforcement will attend and will preside over the Informal
Settlement Conference. An attorney on the Board's staff will also
attend the Informal Settlement Conference. The Field Investigator
who investigated the complaint may attend, in addition to any other
Board staff whose appearance may be helpful, as determined by the
Executive Director or the Director of Enforcement.
(i) Invitation of the Complainant or Third Parties.
The Board may invite the complainant or a third party with information
relevant to the investigation to attend the Informal Settlement Conference.
(j) Format; Record. At the Informal Settlement Conference,
members of Board staff will review the materials submitted by the
respondent in accordance with subsection (f) of this section. Board
staff will question the respondent concerning any matters deemed relevant
to investigating and resolving the matter. The respondent will be
given an opportunity to be heard by Board staff to present their case.
The Respondent should be prepared to identify any defenses or mitigating
factors weighing in favor of a lesser penalty or other form of discipline
sought by the Board. A record of the proceeding may be taken as determined
in the discretion of the Executive Director or Director of Enforcement,
including by audio or video recording. To the extent a record is made,
the Board will notify the respondent of that fact. A copy will be
provided to the respondent, upon written request. Admissions made
by the respondent at the ISC may be used at a formal adjudicative
hearing at SOAH, if applicable.
(k) Proposed Settlement; Agreed Final Order. To the
extent Board staff and the respondent agree in principle to a proposed
resolution of the contested case that includes payment of restitution,
action on the respondent's license or registration, the payment of
an administrative penalty or any other disciplinary action, or combination
of disciplinary actions, the Board will prepare an Agreed Final Order
capturing the terms of the proposed settlement, to be presented to
the Board for consideration and possible adoption. To the extent restitution
payments are proposed, the amount of the restitution will be included
in the Agreed Final Order, and the payee of the restitution payments
will be specifically named, and their last known address listed, in
such Agreed Final Order.