(a)Receipt of a Complaint Intake Form by the board does not constitute the filing of a formal complaint by the board against the individual named on the Complaint Intake Form. [
|A complaint must be in writing and must be signed by the complainant. Board staff may initiate a complaint.] [ (1)]Upon receipt of a signed Complaint Intake Form [ complaint], staff shall: (1)[ (A)] assign the complaint a case number in the complaint tracking system; and (2)[ (B)] send written acknowledgement of receipt to the complainant. (b)[ (2)] If the staff determines at any time that the complaint is not within the board's [ Board's] jurisdiction or that no violation exists, the complaint shall then be dismissed with no further processing. The board [ Board] or the commissioner may delegate to board [ Board ] staff the duty to dismiss complaints. (c)[ (3)] A complaint alleging mortgage fraud or in which mortgage fraud is suspected: (1)[ (A)] may be investigated covertly; and (2)[ (B)] shall be referred to the appropriate prosecutorial authorities. (d)[ (4)] Staff may request additional information necessary to determine how to proceed with the complaint from any person. (e)[ (5)] As part of a preliminary review, a [ A] copy of the Complaint Intake Form [ complaint] and all supporting documentation shall be sent to the respondent unless the complaint qualifies for covert investigation and the Standards and Enforcement Services Division deems covert investigation appropriate. (f)[ (6)] The respondent shall submit a response within 20 days of receiving a copy of the Complaint Intake Form [ complaint]. The 20-day period may be extended for good cause upon request in writing or by e-mail. [ (A)]The response shall include the following: (1)a copy of the appraisal report that is the subject of the complaint; (2)[ (i)] a copy of the respondent's work file associated with the appraisal(s) listed in the complaint, with the following signed statement attached to the work file(s): I SWEAR AND AFFIRM THAT 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; (3)[ (ii)] a narrative response to the complaint, addressing each and every item in the complaint [ element thereof]; (4)[ (iii)] 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; [ and] [(iv) the following statement in the letter transmitting the response: 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.] (5)[ (B)] any [ Any supporting] documentation that supports respondent's position that was not in the work file, as long as it is [ must be] conspicuously labeled as non-work file documentation [ such] and kept separate from the work file. [ (C)]The respondent may also address other matters not raised in the complaint that the respondent believes need explanation; and [ likely to be raised and may be supported by documentation contained in the work file.] (6)a signed, dated and completed copy of any questionnaire sent by board staff. (g)Staff will evaluate the complaint within three months of receipt of the response from respondent to determine whether sufficient evidence of a potential violation of TALCB's statutes or rules, or the Uniform Standards of Professional Appraisal Practice (USPAP) exists to pursue investigation and possible formal disciplinary action. If the staff determines that no violation exists, or there is insufficient evidence to prove a violation, the complaint shall be dismissed with no further processing. If one or more violations exist that staff determines are remediable and do not constitute evidence of a serous inability or unwillingness to comply with board statutes, rules and USPAP and the respondent has had no prior warning letters, contingent dismissals or formal disciplinary action by the board, staff may issue a non-disciplinary warning letter or offer a contingent dismissal agreement to the respondent depending on the nature of the violations. (h)The terms of a contingent dismissal agreement will be in writing and agreed to by all parties. If respondent completes all requirements (e.g. remedial education, mentorship, re-examination, etc.) set out in the agreement within a certain prescribed period of time, the complaint will be dismissed with a non-disciplinary warning letter. (i)[ (7)] If the [ The ] complaint is not dismissed, including contingent dismissal, a formal complaint will [ shall] be opened and it will be [ assigned to a staff investigator and shall be] investigated by a [ the] staff investigator or peer investigative committee, as appropriate. Staff may also open a formal complaint on its own motion. A written notice that a formal complaint has been opened will be sent to the complainant and respondent. (j)[ (8)] The staff investigator or peer investigative committee assigned to investigate a formal complaint shall prepare a report detailing its findings on a form approved by the board [ Board] for that purpose. Reports prepared by a peer investigative committee shall be reviewed by the Standards and Enforcement Services Division, which shall determine the appropriate disposition of the complaint. (k)[ (9)] In determining the proper disposition of a complaint, and subject to the maximum penalties authorized under Texas Occupations Code, [ Tex. Occ. Code] §1103.552, staff shall consider the following penalty matrix:
Figure: 22 TAC §153.24(9)] (A)] For the purposes of the above matrix, a person will not be considered to have had a prior occurrence unless the board [ Board] had taken final action against the person before the date of the appraisal that led to the subsequent disciplinary action. (2)[ (B)] In addition to the guidelines outlined in the matrix, staff may recommend any or all of the following: (A)[ (i)] reducing or increasing the recommended penalty based on documented factors that support the deviation, including but not limited to the number or seriousness of the violation(s) and degree of harm to the public; (B)[ (ii)] probating all or a portion of a sanction or administrative penalty for a period not to exceed five years; (C)[ (iii)] requiring additional reporting requirements; and (D)[ (iv)] such other recommendations, with documented support, as will achieve the purposes of the Act, the Rules, and/or USPAP. (l)[ (10)] Agreed resolutions of complaint matters pursuant to Texas Occupations Code, [ Tex. Occ. Code] §1103.458 or §1103.459 must be signed by the respondent, a representative of the Standards and Enforcement Services Division, and the commissioner.
This agency hereby certifies that the proposal has
been reviewed by legal
counsel and found to be within the agency's
legal authority to adopt.
Filed with the Office
of the Secretary of State on November 14, 2012
Kerri T. Galvin
Texas Appraiser Licensing and Certification Board
Earliest possible date of adoption: December 30, 2012
For further information, please call: (512) 936-3576