SECTION 1.1504. Contents of Order Granting Probation

(a) The commissioner's order placing the agent on disability probation shall state the conditions of the probation.

(b) In determining the conditions of probation, the commissioner shall consider, based upon the evidence at the hearing, the nature and circumstances of the conduct of the agent, the history, character, and condition of the agent; and the nature of the agent's disability. The commissioner shall consider the recommendation of the employee assigned to make a recommendation as to the desirability or non-desirability of probation for the agent, if such report is introduced at the hearing by the staff either in written form or through testimony. The commissioner is not required to follow the recommendation of such employee.

(c) In instances where the staff and the agent are in agreement with respect to material facts and the propriety of probation, the consent order granting probation may be entered in accordance with stipulations, agreements and agreed conditions contained in GAP-FORM 1, GAP-FORM 2, and GAP-FORM 3, as applicable. These forms are adopted by reference as a part of this subchapter, and copies of such forms are on file with the secretary of state and available from the department. In instances where the order to be entered is not a consent order, the commissioner shall impose such conditions upon probation as are deemed appropriate, which may include, but are not limited to:

(1) periodic reports to the Texas Department of Insurance;

(2) satisfactory completion of any course of study required;

(3) psychological evaluation, counseling and treatment, the nature and duration of which shall be set forth in the order;

(4) full or partial payment of costs, including reasonable attorneys' fees and other expenses related to the proceeding, by agent including all costs associated with the prehearing, hearing, and probationary process;

(5) abstinence from the abuse of alcohol and/or drugs;

(6) mandatory attendance at meetings of Alcoholics Anonymous, Narcotics Anonymous, or similar support groups;

(7) periodic field monitoring, at intervals deemed necessary by the department, of the agent's activities, including, but not limited to, any accounting procedures, ledgers, or accounts in which funds of insurers or policyholders may be placed, any records relating to the insurance business of the agent, the way in which the agent conducts insurance business, and compliance with probationary conditions; and

(8) random urine testing to screen for drug and/or alcohol abuse, where drug and/or alcohol abuse is the underlying reason for the disability.

(d) The order of probation shall indicate that the agent has made or will make full restitution to all insureds, and any other persons found to have been harmed by the agent's violation of the Insurance Code or other laws regulating the business of insurance, or by the agent's failure to comply with the agent's professional responsibilities.

(e) If restitution is not made prior to probation, the restitution requirement shall be imposed as a condition of probation and must be made in full during the term of probation.

(f) The order of probation shall name the office of the department responsible for the supervision of the agent placed on disability probation. The order shall recite that on a showing of a failure to comply with the conditions of the probation, the probation may be revoked, and any disciplinary action which has been stayed, in whole or in part, may be imposed.

(g) The order of probation shall recite that upon a showing of a failure to comply with the conditions of probation, additional conditions may be imposed on the probation of the agent for protection of the public and the rehabilitation of the agent.

Source Note: The provisions of this §1.1504 adopted to be effective July 14, 1994, 19 TexReg 5097.