(a) - (l)(No change.)
(m)In determining the proper disposition of a formal
complaint pending as of or filed after the effective date of this
subsection, and subject to the maximum penalties authorized under
Chapter 1104, Texas Occupations Code, staff, the administrative law
judge in a contested case hearing and the Board shall consider the
following sanctions guidelines and list of non-exclusive factors as
demonstrated by the evidence in the record of a contested case proceeding.
(1)For the purposes of these sanctions guidelines:
(A)An AMC will not be considered to have had a prior
warning letter, contingent dismissal or discipline if that prior warning
letter, contingent dismissal or discipline occurred more than ten
years ago;
(B)A prior warning letter, contingent dismissal or
discipline given less than ten years ago will not be considered unless
the Board took final action against the AMC before the date of the
incident that led to the subsequent disciplinary action;
(C)Prior discipline is defined as any sanction, including
an administrative penalty, received under a Board final or agreed
order;
(D)A violation refers to a violation of any provision
of the AMC Act, Board rules, or USPAP;
(E)"Minor deficiencies" is defined as violations
of the AMC Act, Board rules, or USPAP which do not call into question
the qualification of the AMC for licensure in Texas;
(F)"Serious deficiencies" is defined as violations
of the Act, Board rules or USPAP which do call into question the qualification
of the AMC for licensure in Texas;
(G)"Remedial measures" include training, auditing,
or any combination thereof; and
(H)The terms of a contingent dismissal agreement
will be in writing and agreed to by all parties. Staff may dismiss
the complaint with a non-disciplinary warning upon written agreement
that the Respondent will complete all remedial measures within the
agreed-upon timeframe. If the Respondent fails to meet the deadlines
in the agreement, the Respondent's license or certification will be
automatically set to inactive status until the Respondent completes
the remedial measures set forth in the agreement. [If Respondent
completes all remedial measures required in the agreement within a
certain prescribed period of time, the complaint will be dismissed
with a non-disciplinary warning letter.]
(2)List of factors to consider in determining proper
disposition of a formal complaint:
(A)Whether the Respondent has previously received
a warning letter or contingent dismissal, and if so, the similarity
of facts or violations in that previous complaint to the facts or
violations in the instant complaint matter;
(B)Whether the Respondent has previously been disciplined;
(C)If previously disciplined, the nature of the discipline,
including:
(i)Whether it concerned the same or similar violations
or facts;
(ii)The nature of the disciplinary sanctions imposed;
(iii)The length of time since the previous discipline;
(D)The difficulty or complexity of the incident at
issue;
(E)Whether the violations found were of a negligent,
grossly negligent or a knowing or intentional nature;
(F)Whether the violations found involved a single
appraisal or instance of conduct or multiple appraisals or instances
of conduct;
(G)To whom were the appraisal report(s) or the conduct
directed, with greater weight placed upon appraisal report(s) or conduct
directed at:
(i)A financial institution or their agent, contemplating
a lending decision based, in part, on the appraisal report(s) or conduct
at issue;
(ii)The Board;
(iii)A matter which is actively being litigated in
a state or federal court or before a regulatory body of a state or
the federal government;
(iv)Another government agency or government sponsored
entity, including, but not limited to, the United States Department
of Veteran's Administration, the United States Department of Housing
and Urban Development, the State of Texas, Fannie Mae, and Freddie
Mac;
(v)A consumer contemplating a real property transaction
involving the consumer's principal residence;
(H)Whether Respondent's violations caused any harm,
including financial harm, and the amount of such harm;
(I)Whether Respondent acknowledged or admitted to
violations and cooperated with the Board's investigation prior to
any contested case hearing;
(J)The business operating history of the AMC, including:
(i)The size of the AMC's appraiser panel;
(ii)The length of time Respondent has been licensed
as an AMC in Texas;
(iii)The length of time the AMC has been conducting
business operations, in any jurisdiction;
(iv)The nature and extent of any remedial measures
and sanctions the Respondent had received related to the areas in
which violations were found; and
(v)Respondent's affiliation with other business entities;
(K)Whether Respondent can improve the AMC's practice
through the use of remedial measures; and
(L)Whether Respondent has voluntarily completed remedial
measures prior to the resolution of the complaint.
(3)The sanctions guidelines contained herein shall
be employed in conjunction with the factors listed in paragraph (2)
of this subsection to assist in reaching the proper disposition of
a formal complaint:
(A)1st Time Discipline Level 1--violations of the
AMC Act, Board rules, or USPAP which evidence minor deficiencies will
result in one of the following outcomes:
(i)Dismissal;
(ii)Dismissal with non-disciplinary warning letter;
(iii)Contingent dismissal with remedial measures.
(B)1st Time Discipline Level 2--violations of the
AMC Act, Board rules, or USPAP which evidence serious deficiencies
will result in one of the following outcomes:
(i)Contingent dismissal with remedial measures;
(ii)A final order which imposes one or more of the
following:
(I)Remedial measures;
(II)Required adoption and implementation of written,
preventative policies or procedures;
(III)A probationary period with provisions for monitoring
the AMC;
(IV)Monitoring and/or preapproval of AMC panel removals
for a specified period of time;
(V)Monitoring and/or preapproval of the licensed
activities of the AMC for a specified time period or until specified
conditions are satisfied;
(VI)Minimum of $1,000 in administrative penalties
per act or omission which constitutes a violation(s) of the AMC Act,
Board rules, or USPAP; each day of a continuing violation is a separate
violation.
(C)1st Time Discipline Level 3--violations of the
AMC Act, Board rules, or USPAP which evidence serious deficiencies
and were done with knowledge, deliberately, willfully, or with gross
negligence will result in a final order which imposes one or more
of the following:
(i)A period of suspension;
(ii)A revocation;
(iii)Remedial measures;
(iv)Required adoption and implementation of written,
preventative policies or procedures;
(v)A probationary period with provisions for monitoring
the AMC;
(vi)Monitoring and/or preapproval of AMC panel removals
for a specified period of time;
(vii)Monitoring and/or preapproval of the licensed
activities of the AMC for a specified time period or until specified
conditions are satisfied;
(viii)Minimum of $2,500 in administrative penalties
per act or omission which constitutes a violation(s) of the AMC Act,
Board rules, or USPAP; each day of a continuing violation is a separate
violation.
(D)2nd Time Discipline Level 1--violations of the
AMC Act, Board rules, or USPAP which evidence minor deficiencies will
result in one of the following outcomes:
(i)Dismissal;
(ii)Dismissal with non-disciplinary warning letter;
(iii)Contingent dismissal with remedial measures;
(iv)A final order which imposes one or more of the
following:
(I)Remedial measures;
(II)Required adoption and implementation of written,
preventative policies or procedures;
(III)A probationary period with provisions for monitoring
the AMC;
(IV)Monitoring and/or preapproval of AMC panel removals
for a specified period of time;
(V)Monitoring and/or preapproval of the licensed
activities of the AMC for a specified time period or until specified
conditions are satisfied;
(VI)Minimum of $1,000 in administrative penalties
per act or omission which constitutes a violation(s) of the AMC Act,
Board rules, or USPAP; each day of a continuing violation is a separate
violation.
(E)2nd Time Discipline Level 2--violations of the
AMC Act, Board rules, or USPAP which evidence serious deficiencies
will result in a final order which imposes one or more of the following:
(i)A period of suspension;
(ii)A revocation;
(iii)Remedial measures;
(iv)Required adoption and implementation of written,
preventative policies or procedures;
(v)A probationary period with provisions for monitoring
the AMC;
(vi)Monitoring and/or preapproval of AMC panel removals
for a specified period of time;
(vii)Monitoring and/or preapproval of the licensed
activities of the AMC for a specified time period or until specified
conditions are satisfied;
(viii)Minimum of $2,500 in administrative penalties
per act or omission which constitutes a violation(s) of AMC Act, Board
rules, or USPAP; each day of a continuing violation is a separate
violation.
(F)2nd Time Discipline Level 3--violations of the
AMC Act, Board rules, or USPAP which evidence serious deficiencies
and were done with knowledge, deliberately, willfully, or with gross
negligence will result in a final order which imposes one or more
of the following:
(i)A period of suspension;
(ii)A revocation;
(iii)Remedial measures;
(iv)Required adoption and implementation of written,
preventative policies or procedures;
(v)A probationary period with provisions for monitoring
the AMC;
(vi)Monitoring and/or preapproval of AMC panel removals
for a specified period of time;
(vii)Monitoring and/or preapproval of the licensed
activities of the AMC for a specified time period or until specified
conditions are satisfied;
(viii)Minimum of $4,000 in administrative penalties
per act or omission which constitutes a violation(s) of the AMC Act,
Board rules, or USPAP; each day of a continuing violation is a separate
violation.
(G)3rd Time Discipline Level 1--violations of the
AMC Act, Board rules, or USPAP which evidence minor deficiencies will
result in a final order which imposes one or more of the following:
(i)A period of suspension;
(ii)A revocation;
(iii)Remedial measures;
(iv)Required adoption and implementation of written,
preventative policies or procedures;
(v)A probationary period with provisions for monitoring
the AMC;
(vi)Monitoring and/or preapproval of AMC panel removals
for a specified period of time;
(vii)Monitoring and/or preapproval of the licensed
activities of the AMC for a specified time period or until specified
conditions are satisfied;
(viii)Minimum of $2,500 in administrative penalties
per act or omission which constitutes a violation(s) of the AMC Act,
Board rules, or USPAP; each day of a continuing violation is a separate
violation.
(H)3rd Time Discipline Level 2--violations of the
AMC Act, Board rules, or USPAP which evidence serious deficiencies
will result in a final order which imposes one or more of the following:
(i)A period of suspension;
(ii)A revocation;
(iii)Remedial measures;
(iv)Required adoption and implementation of written,
preventative policies or procedures;
(v)A probationary period with provisions for monitoring
the AMC;
(vi)Monitoring and/or preapproval of AMC panel removals
for a specified period of time;
(vii)Monitoring and/or preapproval of the licensed
activities of the AMC for a specified time period or until specified
conditions are satisfied;
(viii)Minimum of $4,000 in administrative penalties
per act or omission which constitutes a violation(s) of the AMC Act,
Board rules, or USPAP; each day of a continuing violation is a separate
violation.
(I)3rd Time Discipline Level 3--violations of the
AMC Act, Board rules, or USPAP which evidence serious deficiencies
and were done with knowledge, deliberately, willfully, or with gross
negligence will result in a final order which imposes one or more
of the following:
(i)A revocation; and
(ii)Minimum of $7,000 in administrative penalties
per act or omission which constitutes a violation(s) of USPAP, Board
Rules, or the Act; each day of a continuing violation is a separate
violation.
(J)4th Time Discipline--violations of the AMC Act,
Board rules or USPAP will result in a final order which imposes the
following:
(i)A revocation; and
(ii)$10,000 in administrative penalties per act or
omission which constitutes a violation(s) of the AMC Act, Board rules,
or USPAP; each day of a continuing violation is a separate violation.
(K)Unlicensed AMC activity will result in a final
order which imposes a $10,000 in administrative penalties per unlicensed
AMC activity; each day of a continuing violation is a separate violation.
(4)In addition, staff may recommend any or all of
the following:
(A)Reducing or increasing the recommended sanction
or administrative penalty for a complaint based on documented factors
that support the deviation, including but not limited to those factors
articulated under paragraph (2) of this subsection;
(B)Probating all or a portion of any remedial measure,
sanction, or administrative penalty for a period not to exceed three
years;
(C)Requiring additional reporting requirements;
(D)Payment of costs expended by the Board associated
with the investigation, and if applicable, a contested case, including
legal fees and administrative costs; and
(E)Such other recommendations, with documented support,
as will achieve the purposes of the AMC Act, Board rules, or USPAP.
(n) - (o)(No change.)
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 August 23, 2021
TRD-202103296 Kathleen Santos
General Counsel
Texas Appraiser Licensing and Certification Board
Earliest possible date of adoption: October 3, 2021
For further information, please call: (512) 936-3652
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