(a)The purpose of a temporary suspension proceeding
is to determine whether the continued practice by a person licensed,
certified or registered by the Board would constitute a continuing
threat to the public welfare. A temporary suspension proceeding is
ancillary to a disciplinary proceeding regarding alleged violations
of the Act or Board rules and is not dispositive concerning any such
violations.
(b)Board staff may request the Board
to grant a temporary suspension if:
(1)the Board has opened a complaint investigation
against a license holder; and
(2)the following criteria are met:
(A)credible evidence shows:
(i)a license holder may continue to engage in conduct
that may violate the Act, Board rules, or USPAP;
(ii)the license holder's conduct involves recent or
current appraisal practice; and
(B)sufficient evidence is available to proceed with
a contested case hearing within 45 days of a temporary suspension
proceeding.
(c)[(b)] The three Board members
of the Enforcement Committee appointed by the chair of the Board shall
serve as the disciplinary panel ("Panel") under Texas Occupations
Code, §1103.5511 and §1104.211. The chair of the Board shall
also appoint a Board member to act as an alternate member of the Panel
in the event a member of the Panel is recused or unable to attend
a temporary suspension proceeding.
(d)[(c)] Board staff must request
a temporary suspension proceeding in writing by filing a motion for
temporary suspension with the Board's general counsel.
(e)[(d)] The Panel may make
a determination regarding a temporary suspension without notice or
hearing pursuant to Texas Occupations Code, §1103.5511(c)(1)
or §1104.211(c)(1), or may, if appropriate in the judgment of
the chair of the Panel, provide the license holder or registrant with
three days' notice of a temporary suspension hearing.
(f)[(e)] The requirement under
Texas Occupations Code, §1103.5511(c)(1) or §1104.211(c)(1)
that "institution of proceedings for a contested case hearing is initiated
simultaneously with the temporary suspension" shall be satisfied if,
on the same day the motion for temporary suspension is filed with
the Board's general counsel, the licensed, certified or registered
person that is the subject of the temporary suspension motion, and
the State Office of Administrative Hearings, as applicable, is sent
one of the following documents that alleges facts that precipitated
the need for a temporary suspension:
(1)Notice of Alleged Violation;
(2)Original Statement of Charges; or
(3)Amended Statement of Charges.
(g)[(f)] The Panel shall post
notice of the temporary suspension proceeding pursuant to §551.045
of the Texas Government Code and Texas Occupations Code, §1103.5511(e)
or §1104.211(e) and hold the temporary suspension proceeding
as soon as possible.
(h)[(g)] The determination whether
the continued practice by a person licensed, certified or registered
by the Board would constitute a continuing threat to the public welfare
shall be made from information presented to the Panel. The Panel may
receive information and testimony in oral or written form. Documentary
evidence must be submitted to the Board's general counsel in electronic
format at least 24 hours in advance of the time posted for the temporary
suspension hearing in all cases where the Panel will be meeting via
teleconference. If a hearing is held following notice to a license
holder or registrant, Board staff will have the burden of proof and
shall open and close. The party responding to the motion for temporary
suspension may offer rebuttal arguments. Parties may request an opportunity
for additional rebuttal subject to the discretion of the chair of
the Panel. The chair of the Panel may set reasonable time limits for
any oral arguments and evidence to be presented by the parties. The
Panel may question witnesses and attorneys at the members' discretion.
Information and testimony that is clearly irrelevant, unreliable,
or unduly inflammatory will not be considered.
(i)[(h)] The determination of
the Panel may be based not only on evidence admissible under the Texas
Rules of Evidence, but may be based on information of a type on which
a reasonably prudent person commonly relies in the conduct of the
person's affairs.
(j)[(i)] If the Panel suspends
a license or certificate, it shall do so by order and the suspension
shall remain in effect for the period of time stated in the order,
not to exceed the date a final order is issued by the Board in the
underlying contested case proceeding. The Panel order must recite
the factual and legal basis for imminent peril warranting temporary
suspension.
(k)[(j)] A temporary suspension
under Texas Occupations Code §1103.5511 or §1104.211 shall
not automatically expire after 45 days if the Board has scheduled
a hearing on the contested case to take place within that time and
the hearing is continued beyond the 45th day for any reason other
than at the request of the Board.
(l)[(k)] If credible and verifiable
information that was not presented to the Panel at a temporary suspension
hearing, which contradicts information that influenced the decision
of the Panel to order a temporary suspension, is subsequently presented
to the Panel with a motion for rehearing on the suspension, the chair
of the Panel will schedule a rehearing on the matter. The chair of
the Panel will determine, in the chair's sole discretion, whether
the new information meets the standard set out in this subsection.
A rehearing on a temporary suspension will be limited to presentation
and rebuttal of the new information. The chair of the Panel may set
reasonable time limits for any oral arguments and evidence to be presented
by the parties. Panel members may question witnesses and attorneys.
Information and testimony that is clearly irrelevant, unreliable,
or unduly inflammatory will not be considered. Any temporary suspension
previously ordered will remain in effect, unless the Panel holds a
rehearing on the matter and issues a new order rescinding the temporary
suspension.
The agency certifies that legal counsel has reviewed
the
proposal and found it to be within the state agency's legal authority
to adopt.
Filed with the Office
of the Secretary of State on February 11, 2019
TRD-201900417 Kristen Worman
General Counsel
Texas Appraiser Licensing and Certification Board
Earliest possible date of adoption: March 24, 2019
For further information, please call: (512) 936-3652
|