SECTION 533.7. Final Decisions and Orders

(a) After a Proposal for Decision has been issued by an administrative law judge, the Commission will render the final decision in a contested case or remand the proceeding for further consideration by the administrative law judge. The Commission is responsible for imposing disciplinary action and/or assessing administrative penalties against respondents who are found to have violated any of the Commission's statutes or rules. The Commission welcomes recommendations of administrative law judges as to the sanctions to be imposed, but the Commission is not required to give presumptively binding effect to the administrative law judges' recommendations and is not bound by such recommendations.

(b) If the Commission remands the case to the administrative law judge, the Commission may direct that further consideration be accomplished with or without reopening the hearing and may limit the issues to be considered. If, on remand, additional evidence is admitted that results in a substantial revision of the Proposal for Decision, or the underlying facts, the administrative law judge shall prepare an amended or supplemental Proposal for Decision and this subchapter applies. Exceptions and replies are limited to items contained in the supplemental Proposal for Decision.

(c) The Proposal for Decision may be acted on by the Commission after the administrative law judge has ruled on any exceptions or replies to exceptions or on the day following the day exceptions or replies to exceptions were due if no such exceptions or replies were filed.

(d) Any party may request oral argument before the Commission before the final disposition of the contested case. An oral argument is conducted in accordance with paragraphs (1) - (5) of this subsection.

(1) The chairperson or the Commission member designated by the chairperson to preside (the presiding member) shall announce the case. Upon the request of any party, the presiding member may conduct a prehearing conference with the parties and their attorneys of record. The presiding member may announce reasonable time limits for any oral arguments presented by the parties.

(2) The hearing on the Proposal for Decision is limited to the record. New evidence may not be presented on the substance of the case unless the party submitting the evidence establishes that the new evidence was not reasonably available at the time of the original hearing or the party offering the evidence was misled by a party regarding the necessity for offering the evidence at the original hearing.

(3) In presenting an oral argument, the party bearing the burden of proof opens and closes. The party responding may offer a rebuttal argument. A party may request an opportunity for additional rebuttal subject to the discretion of the presiding member.

(4) After being recognized by the presiding member, the members of the Commission may ask questions of the parties. If a party is represented by counsel, the Commission must direct the questions to the party's attorney. Questions must be limited to the record and to the arguments made by the parties.

(5) Upon the conclusion of oral arguments, questions by the members of the Commission, and any discussion by the members of the Commission, the presiding member shall call for a motion regarding disposition of the contested case. The presiding member may vote on the motion. A motion is granted only if a majority of the members present and voting vote in favor of the motion. In the event of a tie vote, the presiding member shall announce that the motion is overruled.

(e) It is the policy of the Commission to change a finding of fact or conclusion of law in a Proposal for Decision of an administrative law judge when the Commission determines:

(1) that the administrative law judge did not properly apply or interpret applicable law, agency rules, written policies provided by staff, or prior administrative decisions;

(2) that a prior administrative decision on which the administrative law judge relied is incorrect or should be changed; or

(3) that a technical error in a finding of fact should be changed.

(f) If the Commission modifies, amends, or changes a finding of fact or conclusion of law in a Proposal for Decision, the order shall reflect the Commission's changes and state the specific reason and legal basis for the changes. If the Commission does not follow the recommended sanctions in a Proposal for Decision, the order shall explain why the Commission chose not to follow the recommendation.

(g) Final orders on contested cases shall be in writing and signed by the presiding officer of the Commission. Final orders shall include findings of fact and conclusions of law separately stated from disciplinary actions imposed and administrative penalties assessed. Parties will be notified and given a copy of the decision as provided by the APA. A decision is final as provided by the APA.

(h) If the Commission or the Executive Director finds that an imminent peril to the public health, safety, or welfare requires immediate effect of a final decision or order, that finding shall be recited in the decision or order as well as the fact that the decision or order is final and effective on the date signed. The decision or order is then final and appealable on the date signed and a motion for rehearing is not required as a prerequisite for appeal.

(i) Conflict of Interest. A Commission member shall recuse themselves from all deliberations and votes regarding any matter:

(1) the member reviewed during an informal proceeding pursuant to §533.25 of this chapter;

(2) involving persons or transactions about which the member has a conflict of interest; or

(3) involving persons or transactions related to the member such that it creates the appearance of a conflict of interest.

Source Note: The provisions of this §533.7 adopted to be effective December 30, 2007, 32 TexReg 9987; amended to be effective November 29, 2012, 37 TexReg 9363; amended to be effective May 21, 2014, 39 TexReg 3856; amended to be effective November 24, 2015, 40 TexReg 8219; amended to be effective May 25, 2022, 47 TexReg 3050