SECTION 140.428. Informal Disposition

(a) At any stage of a disciplinary case, informal disposition of a complaint or contested case involving an applicant or licensee may be made through an informal conference held to determine whether the matters in controversy can be resolved without further proceedings, including by agreed order.

(b) In any case where a notice of violation has been issued proposing disciplinary action against an applicant or licensee, that person will be given the opportunity to attend an informal conference to show compliance with the law, pursuant to Texas Government Code §2001.054 (relating to Licenses), prior to a requested hearing. If the applicant or licensee fails to appear at a scheduled informal conference, the department may deem that person to have waived the right to an informal conference and may proceed to hearing.

(c) An informal conference shall be voluntary for the applicant or licensee and shall not be a prerequisite to a formal hearing.

(d) The conference shall be informal and shall not follow the procedures established in this subchapter for contested cases and formal hearings.

(e) The department will establish the time, date and place of the informal conference, and provide written notice to the licensee or applicant. Written notice will be provided no less than 10 business days prior to the date of the informal conference at the last known address of the licensee or applicant.

(f) The applicant or licensee may be represented by legal counsel at the informal conference. The department's legal counsel and appropriate staff will be present at the conference.

(g) At the conclusion of the informal conference, the department may propose an informal disposition of the complaint or contested case. The proposal may include proposed entry of an agreed order imposing any disciplinary action authorized by the Act or this subchapter. The department may also conclude that the department lacks jurisdiction; that the matter should be referred for further investigation; that the complaint should be closed without action; or that the department will proceed to a contested case hearing on the proposed action, if one has been requested by the applicant or licensee, in accordance with §140.430 of this title (relating to Procedures for Contested Cases).

(h) The licensee or applicant may either accept or reject the department's proposal at the informal conference. If the recommendations are accepted, a proposed agreed order will be forwarded to the licensee or applicant, or that person's attorney. The order will include any agreed findings of fact and conclusions of law. If the licensee or applicant fails to return the signed order within 20 days of receipt of the proposed order, or within another time frame specified or agreed to by the department, the department's proposed order will be deemed withdrawn and the department may proceed to a contested case hearing on the action originally proposed, if the applicant or licensee has requested one, or otherwise proceed with appropriate action against the applicant or licensee. The licensee or applicant will be deemed to have received the proposed agreed order three days after mailing.

Source Note: The provisions of this §140.428 adopted to be effective August 9, 2012, 37 TexReg 5788