SECTION 1.1502. Request for Probation in Lieu of Suspension, Revocation, or Cancellation of License

(a) An agent may raise the issue of disability and request probation pursuant to the Insurance Code, Article 21.15-6, and this subchapter, prior to a hearing to suspend, revoke or cancel the agent's license.

(1) An agent may request probation prior to a contested case hearing after receipt of a notice of intention to institute disciplinary action from the staff of the department against the agent suggesting suspension, revocation or cancellation of an agent's license. The request for probation must be submitted prior to the hearing on such disability, and the agent must furnish the items specified in subparagraphs (A) and (B) of this paragraph:

(A) written stipulations in a format acceptable to the staff of the department; and

(B) evidence of the agent's disability.

(2) If the staff and the agent are in agreement as to the proposed stipulations relating to the violation, the evidence of the agent's disability, and the proposed conditions of probation, the staff of the department may recommend a consent order be signed by the commissioner that meets the requirements of §1.1504 of this title (relating to Contents of Order Granting Probation) and which has been drafted in accordance with stipulations and agreed conditions based, as applicable, on the contents of the forms "GAP-FORM 1-General Agent Probation Conditions, T.D.I. Legal Services & Compliance," "GAP-FORM 2-Authorization for release of Information and Medical Records," and "GAP-FORM 3-Support Group Attendance," which are adopted by reference as a part of this subchapter, and copies of which are on file with the secretary of state and available from the department.

(3) If the staff and the agent cannot reach agreement as to the underlying facts related to the alleged violation, the evidence of the agent's disability, and/or the proposed conditions of probation, a hearing shall be held on any or all of these contested matters in accordance with the Government Code, §2001.051, et seq., and Subchapter A of this chapter (relating to Rules of Practice and Procedure). All matters necessary to a resolution of the allegations relating to the proposed suspension, revocation or cancellation of the license, the evidence of the disability and the conditions of any proposed probation, may be decided in the same hearing before the same hearing officer.

(b) An agent may raise the issue of probation for disability during the hearing relating to a suspension, revocation or cancellation of the agent's license.

(1) The agent must give written notice to the staff attorney representing the department in the contested case of the agent's intention to raise the issue of probation. The written notice must be received by the staff attorney at least five days prior to the scheduled hearing date. Upon receipt of such notification, the staff attorney may request a continuance of the hearing to acquire and present evidence and legal authority on the issue of the propriety of probation for any disability of the agent and/or to obtain an independent evaluation of the agent. The continuance shall be granted by the hearing officer for a reasonable period of time depending upon the circumstances.

(2) If the agent does not give the written notice required in paragraph (1) of this subsection and seeks to raise the issue of probation as a result of a disability at the hearing, the hearing officer shall not consider evidence of the disability of the agent unless the agent, by a preponderance of evidence, is able to establish good cause for failure to provide the written notification. If the agent is able to establish good cause, the hearing officer may hear evidence of the disability of the agent after having granted any continuance requested by the staff to acquire and present evidence and legal authority on the issue of the propriety of probation for any disability of the agent. The continuance must be for a reasonable period and be sufficient to allow for an independent evaluation of the agent at the staff's request.

Source Note: The provisions of this §1.1502 adopted to be effective July 14, 1994, 19 TexReg 5097.