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RULE §157.17Final Decisions and Orders

(a) After a proposal for decision has been issued by an administrative law judge, the Board will render the final decision in the contested case or remand the proceeding for further consideration by the administrative law judge.

(b) The Board is responsible for imposing disciplinary action and/or assessing administrative penalties, if any, against a respondent who is found to have violated any of the Board's statutes or rules. The Board welcomes recommendations from an administrative law judge as to the sanctions to be imposed, but the Board is not required to give presumptively binding effect to the judge's recommendations and is not bound by such recommendations.

(c) If the Board remands the case to the administrative law judge, the Board may direct that further consideration be accomplished with or without reopening the hearing and may limit the issues to be considered. If, on remand, additional evidence is admitted that results in a substantial revision of the proposal for decision, or the underlying facts, an amended or supplemental proposal for decision shall be prepared by the administrative law judge and the provisions of this subchapter shall apply. Exceptions and replies shall be limited to items contained in the amended or supplemental proposal for decision.

(d) The proposal for decision may be acted upon by the Board after the expiration of the applicable time periods for filing exceptions and replies to exceptions, and after the administrative law judge has ruled on any exceptions and replies.

(e) Any party may request oral arguments before the Board prior to the final disposition of the contested case. If the Board grants oral argument, oral argument will be conducted in accordance with this subsection.

  (1) The chairperson or the Board member designated by the chairperson to preside (the presiding member) shall announce the case. Upon the request of any party, the presiding member may conduct a prehearing conference with the parties and their attorneys of record. The presiding member may announce reasonable time limits for any oral arguments to be presented by the parties.

  (2) Oral arguments on the proposal for decision shall be limited to the record established at the contested case hearing. New evidence may not be presented on the substance of the case unless the party submitting the evidence can establish that the new evidence was not reasonably available at the time of the contested case hearing or the party offering the evidence was misled by a party regarding the necessity for offering the evidence at the contested case hearing.

  (3) In presenting oral arguments, the party bearing the burden of proof shall open and close. The party responding may offer rebuttal arguments. Parties may request an opportunity for additional rebuttal subject to the discretion of the presiding member.

  (4) After being recognized by the presiding member, the members of the Board may ask questions of the parties. If a party is represented by counsel, the questions must be directed to the party's attorney. Questions must be limited to the record and to the arguments made by the parties.

  (5) Upon the conclusion of oral arguments, questions by the members of the Board, and any discussion by the member of the Board, the presiding member shall call for a motion regarding disposition of the contested case. The presiding member may vote on the motion. A motion may be granted only if a majority of the members present and voting vote in favor of the motion. In the event of a tie vote, the presiding member shall announce that the motion is overruled.

(f) Final orders on contested cases shall be in writing and signed by the presiding officer of the Board. Final orders shall include findings of fact and conclusions of law separately stated from disciplinary actions imposed and administrative penalties assessed. Parties shall be notified as provided in Chapter 2001, Texas Government Code. On written request, a copy of the decision or order shall be delivered or mailed to any party and to the respondent's attorney of record.

(g) The Board may change a finding of fact or conclusion of law in a proposal for decision when the Board determines that:

  (1) the judge did not properly apply or interpret applicable law, agency rules, written policies provided by staff or prior administrative decisions;

  (2) a prior administrative decision on which the judge relied is incorrect or should be changed; or

  (3) a technical error in a finding of fact should be changed.

(h) If the Board modifies, amends, or changes a finding of fact or conclusion of law in a proposal for decision, the order shall reflect the Board's changes and state the specific reason and legal basis for the changes.

(i) If the Board does not follow the recommended disciplinary action and/or administrative penalty in a proposal for decision, the order shall explain why the Board chose not to follow the recommendation.

(j) Imminent Peril. If the Board finds that an imminent peril to the public health, safety, or welfare requires immediate effect on a final decision or order in a contested case, it shall recite the factual and legal basis for its finding in the decision or order as well as the fact that the decision or order is final and effective on the date rendered, in which event the decision or order is final and appealable on the date rendered, and no motion for rehearing is required as a prerequisite for appeal.

(k) Conflict of Interest. A Board member shall recuse himself or herself from all deliberations and votes regarding any matter:

  (1) the Board member reviewed as a member of a Peer Investigative Committee;

  (2) involving persons or transactions about which the Board member has a conflict of interest;

  (3) involving persons or transactions related to the Board member such that it creates the appearance of a conflict of interest; or

  (4) in which the Board member participated in the negotiation of a consent order.

Source Note: The provisions of this §157.17 adopted to be effective January 9, 2008, 33 TexReg 178; amended to be effective July 21, 2008, 33 TexReg 5694; amended to be effective November 9, 2008, 33 TexReg 8944; amended to be effective December 4, 2012, 37 TexReg 9507; amended to be effective June 8, 2014, 39 TexReg 4254; amended to be effective January 1, 2016, 40 TexReg 8897; amended to be effective December 10, 2017, 42 TexReg 6925; amended to be effective May 14, 2018, 43 TexReg 3096; amended to be effective May 26, 2022, 47 TexReg 3048

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