(a)Upon receipt of a complaint the Board's staff shall assign the complaint a complaint number. (b)The Board's staff shall review the complaint including supporting documentation. If the complaint does not contain sufficient information to determine whether the Board has jurisdiction or is considered to be outside the Board's authority, the Board's staff may interview the complainant to develop additional information. (c)The Board or the commissioner may delegate to Board staff the duty to dismiss complaints under the Act and these rules. (d)If the Board's staff determines that a possible violation exists, the Board's staff shall proceed with the investigation. (e)Pursuant to TEX. OCC. CODE §1103.101(b) the Commissioner is delegated those responsibilities with respect to the enforcement processes of the Board set forth in this chapter. (f)A complaint must be in writing and must be signed by the complainant. The staff may initiate a complaint. (g)Upon receipt of a complaint, the staff will: (1)Send written acknowledgement of receipt to the complainant; (2)Assign the complaint a case number and enter it onto a complaint tracking system which shall provide all necessary documentation to assure tracking of the handling and disposition of the complaint and the reporting of accurate and verifiable performance measures results; (3)Make a preliminary determination whether the complaint is within the Board's jurisdiction and, if it is not, initiate the necessary correspondence to advise the complainant and dismiss the case for lack of jurisdiction; if there is jurisdiction the staff will continue as follows: (A)Review the case and, as deemed necessary and appropriate, recommend to the Commissioner that the matter be investigated covertly. If it is not lawful and appropriate to conduct a covert investigation, the staff will continue as follows; (B)If the complaint involves appraisal activity, transmit a letter to the person who is the subject of the complaint, referred to herein as the "respondent," requiring a response meeting the below-listed criteria: (i)The respondent shall, within twenty (20) calendar days, send a signed letter transmitting a narrative response to the complaint, addressing each and every element thereof and including numbered references to support in the respondent's work file which is to be marked with corresponding tabs. The twenty (20) day period may be extended for good cause. Any request for extension must be in writing. Email is acceptable. The letter transmitting the response must contain the following statement: EXCEPT AS SPECIFICALLY SET FORTH HEREIN THE COPY OF EACH AND EVERY APPRAISAL WORK FILE ACCOMPANYING THIS RESPONSE IS A TRUE AND CORRECT COPY OF THE ACTUAL WORK FILE, AND NOTHING HAS BEEN ADDED TO OR REMOVED FROM THIS WORK FILE OR ALTERED AFTER PLACEMENT IN THE WORK FILE. (LIST ANY EXCEPTIONS AND IDENTIFY THEM IN THE WORK FILE AS EXCEPTIONS, USING CORRESPONDING TABS.) (ii)The response may also address other matters not raised in the complaint that the respondent believes likely to be raised by the staff and may be supported by documentation contained in the work file, appropriately identified and tabbed. (iii)Any supporting documentation that is provided that was not in the work file must be conspicuously labeled as such and kept separate from the work file. (iv)The response must provide a list of any and all persons known to the respondent to have actual knowledge of any of the matters made the subject of the complaint and, if in the respondent's possession, contact information. (4)Staff shall review the response, including all supporting materials provided and, no later than 60 days after receipt, contact the respondent to discuss the matter. In this discussion, which may be in person or by telephone, the assigned staff person conducting the investigation will advise the respondent as to: (A)Their preliminary views, based on a review of the complaint, the response, and all supporting documentation provided, as to the merits of the complaint; (B)Their preliminary views as to any other violations of the Act, the Rules, or USPAP identified in this review process; and (C)Unless they believe that additional investigative work is warranted, what they would view as an appropriate resolution. (5)Following this conversation, if the respondent believes that a face-to-face meeting to discuss the matter further would facilitate resolution, the staff person may agree to such a meeting. (6)Any general agreement in principle as to resolution may be reduced to a proposed form of consent order or consent agreement and, if the staff attorney and the Commissioner concur, may be presented to the Board for approval, denial, or a request for changes and re-presentation. (7)If agreement as to resolution cannot be reached, the staff shall proceed with any necessary investigation and the preparation and prosecution of a contested case before the State Office of Administrative Hearings subject to TEX. GOV'T. CODE, Chapter 2001 and TEX. OCC. CODE, Chapter 1103. (h)In determining the proper disposition of a complaint, staff shall follow the following guidelines:
Figure: 22 TAC §153.24(h) (No change.) (1)In addition to the recommended actions provided for above, staff may recommend any or all of the following: (A)Reducing or increasing the recommended penalty based on documented factors that support the deviation; (B)Probating all or a portion of a sanction or administrative penalty for a period not to exceed five (5) years; (C)Requiring additional reporting requirements; and/or (D)Such other recommendations, with documented support, as will achieve the purposes of the Act, the Rules, and/or USPAP. (2)Any and all administrative sanctions provided for above are in addition to an agreement or order to comply fully with applicable laws, rules, and regulations. (3)If, after a review of the file and completion of any investigation deemed necessary, the staff concludes that disciplinary action is not appropriate, the commissioner or a designee of the Board or the commissioner may dismiss the complaint. (i)Whenever staff becomes aware of facts or circumstances that indicate a reasonable likelihood that mortgage fraud may have been committed with the involvement or participation of a licensee, staff will coordinate the handling of that matter in accordance with applicable laws and rules, including the rules of the Mortgage Fraud Task Force under the auspices of the Office of the Attorney General, and make any appropriate referrals and/or reports to prosecutorial authorities or other oversight authorities. (j)All final orders must be approved by the Board. (k)The reviews and investigations provided for in these rules are of a regulatory nature and do not constitute engaging in appraisal activity subject to USPAP. With the Commissioner's or the Board's prior approval, staff may perform or engage others to perform appraisal activity for the Board as needed to carry out an effective regulatory oversight and enforcement program. (l)A Peer Investigative Committee that has been appointed in accordance with TEX. OCC. CODE §1103.453 and it shall receive such compiled complaint files as the Chair may refer to them, review them, and make a report to staff as to: (1)The general facts presented; (2)Whether the allegations in the complaint are believed to be true or false and, if believed true, provide a statement as to which documents in the complaint file support that view; (3)Whether the review indicated any other violations of USPAP that should be added to the complaint and, if so, a statement as to which documents in the complaint file support that view; and (4)If it is believed that additional investigative work needs to be done, a statement as to what additional investigation is believed to be warranted. (m)The foregoing processes are deemed to be a regulatory review and are not deemed to be appraisal activity. Staff may rely on the report as setting forth the findings of fact necessary to support any appropriate conclusions of law and determination as to an appropriate regulatory resolution.
This agency hereby certifies
that the adoption has
been reviewed by legal counsel and found to be a valid exercise of
the agency's legal authority.
Filed with the Office
of the Secretary of State on October 23, 2009
Devon V. Bijansky
Texas Appraiser Licensing and Certification Board
Effective date: November 12, 2009
Proposal publication date: September 11, 2009
For further information, please call: (512) 465-3900