SECTION 3.165. Informal Disposition of a Contested Case

(a) A Contested Case may be resolved informally at any time.

(b) If the respondent agrees in writing to a settlement agreement and the Executive Director executes the written settlement agreement, the settlement agreement shall be presented to the Board for approval or rejection. The settlement agreement must include written findings of fact and conclusions of law and may be in the form of a consent order, letter of reprimand, or other format approved by the Executive Director.

(c) If the Board rejects a settlement agreement, the respondent shall have the opportunity to agree to alternative settlement terms approved by the Board. If the respondent does not agree to alternative settlement terms approved by the Board, the case shall be referred to the State Office of Administrative Hearings for a formal hearing.

(d) If the respondent and the Executive Director do not agree in writing to a settlement agreement, the case shall be referred to the State Office of Administrative Hearings for a formal hearing.

(e) An informal disposition may be made of a Contested Case by default. Default occurs whenever a respondent neither answers nor makes other written response to the filing of a Complaint or Petition at the State Office of Administrative Hearings alleging a violation of any law or rule over which TBAE possesses jurisdiction. Default also occurs if the respondent fails to appear at a scheduled and properly noticed hearing to be conducted by the State Office of Administrative Hearings.

(f) The Board and the Executive Director shall take into account the following factors when considering a proposed settlement agreement:

(1) the nature, circumstances, extent, and gravity of any relevant act or omission;

(2) the hazard or potential hazard to the health, safety and welfare of the public;

(3) the economic harm resulting from the conduct;

(4) the respondent's history concerning any previous ground for sanction;

(5) the severity of penalty necessary to effectuate specific and general deterrence;

(6) any effort by the respondent to take prompt remedial action;

(7) the economic benefit gained by the respondent as a result of the conduct;

(8) any other matter justice may require; and

(9) when considering a referral from the Texas Department of Licensing and Regulation, in addition to the factors described in this subsection, the Board shall consider the actual number of days that the submission was late.

Source Note: The provisions of this §3.165 adopted to be effective January 8, 2002, 27 TexReg 165; amended to be effective October 18, 2009, 34 TexReg 7074