SECTION 187.42. Recusals

(a) Permissive Recusal. At any meeting of the board or board committee, a board member may choose to be recused from participating and voting regarding any matter for any reason. The board member shall not be required to state the basis for recusal, but may choose to state the basis in general terms if such a statement will not prejudice the rights of any party to a fair proceeding before the board or committee of the board. In the event a board member discloses a basis for recusal which could potentially prejudice the rights of any party to a fair proceeding, the presiding officer of the board or committee may cure any such prejudice by an instruction to board or committee members to not consider the statement during the course of the proceeding or during deliberations or discussions related to the proceeding.

(b) Standards for Recusal.

(1) A board member should exercise sound discretion in choosing to be recused from participation and voting regarding any matter.

(2) A board member should choose to be recused if the board member:

(A) has a direct financial interest or relationship with any matter, party, or witness that would give the appearance of a conflict of interest;

(B) has a familial relationship within the third degree of affinity with any party or witness; or

(C) determines that he/she has knowledge of information that is not in the administrative record of a contested case and that he/she cannot set aside that knowledge and fairly and impartially consider the matter based solely on the administrative record.

(3) The fact that a board member participated in an ISC, a temporary suspension, or any other matter regarding a respondent shall not require the board member to be recused from any other matter, unless the board member determines that he or she cannot set aside knowledge of any information that is not in the administrative records and fairly and impartially consider the matter based solely on the administrative record.

(c) Motion for Disqualification by a Party.

(1) Any party may move for the disqualification of a board member stating with particularity why the board member should not sit. The motion shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall be verified by affidavit.

(2) The motion must be filed with the Hearings Coordinator of the Board at least five business days prior to a board meeting at which the matter is on the agenda. The Hearings Coordinator shall immediately send a copy of the Motion for Disqualification to all board members.

(3) The board member sought to be disqualified shall determine whether the motion raises valid issues and whether the board member can fairly and impartially consider the matter based solely on the administrative record, setting aside knowledge of any information that is not in the administrative record. If the board member determines that he/she can fairly and impartially consider the matter and chooses not to be recused, the board member shall inform the board of that decision and shall be allowed to participate in all discussion and voting regarding the matter. The board is not required to take a vote on the motion.

(4) Consent to Participation. Failure to timely file a Motion for Disqualification regarding any board member as provided for in this subsection shall constitute a waiver of any objection and consent to participation by the member.

(d) Upon exercising the right to be recused and announcement of the recusal in open session, any board member so recused shall be allowed to remain in the room during any portion of the related proceeding and shall be counted for purposes of determining a quorum, but shall not participate in any discussions, questioning, deliberations, or vote pertaining to the proceeding.

Source Note: The provisions of this §187.42 adopted to be effective January 6, 2002, 26 TexReg 10867; amended to be effective January 25, 2006, 31 TexReg 394