SECTION 349.370. Formal Disciplinary Proceedings

In the event a disciplinary action is not resolved informally, formal disciplinary proceedings may be initiated and pursued by the Commission in accordance with the following provisions.

(1) Formal administrative hearings in contested cases shall be conducted in accordance with the APA and SOAH rules. Jurisdiction over the case is acquired by SOAH when Commission staff or the Certified Officer files a Request to Docket Case Form accompanied by legible copies of all pertinent documents, including but not limited to the complaint, petition, application or other document describing the agency action giving rise to a contested case.

(2) When a case has been docketed before SOAH, the party requesting docketing shall provide a notice of hearing to all parties in accordance with §2001.052 of the Texas Government Code and applicable SOAH rules.

(3) The certified officer shall enter an appearance by filing a written answer or other responsive pleading with SOAH, along with a copy to Commission staff, within 20 days of the date on which the notice of hearing is served on the Certified Officer.

(4) For purposes of this section, an entry of an appearance shall mean the filing of a written answer or other responsive pleading.

(5) The failure of the Certified Officer to timely enter an appearance as provided in this section shall entitle Commission staff to a continuance at the time of the hearing in the contested case for such reasonable period of time as determined by the judge.

(6) The notice of hearing provided to a Certified Officer for a contested case shall include the following language in capital letters in 12-point bold face type: FAILURE TO ENTER AN APPEARANCE BY FILING A WRITTEN ANSWER OR OTHER RESPONSIVE PLEADING TO THE FORMAL CHARGES WITHIN 20 DAYS OF THE DATE THIS NOTICE WAS MAILED, SHALL ENTITLE COMMISSION STAFF TO A CONTINUANCE AT THE TIME OF THE HEARING.

(7) If a Certified Officer fails to appear in person or by authorized representative on the day and at the time set for hearing in a contested case, regardless of whether an appearance has been entered, the judge, pursuant to SOAH's rules, shall, upon adequate proof that proper notice under the APA and SOAH rules was served upon the defaulting party, enter a default judgment in the matter adverse to the Certified Officer. Such notice shall have included in 12-point, boldface type, the fact that upon failure of the party to appear at the hearing, the factual allegations in the notice may be deemed admitted as true and the relief sought in the proposed recommendation by the staff may be granted by default.

(8) Any default judgment granted under this section will be entered on the basis of the factual allegations in the formal charges contained in the notice of hearing, and upon proof of proper notice to the Certified Officer. For purposes of this section, proper notice means notice sufficient to meet the provisions in §§2001.051, 2001.052 and 2001.054 of the Texas Government Code and §349.320 of this chapter. Such notice of hearing shall also include the following language in capital letters in 12-point boldface type: FAILURE TO APPEAR AT THE HEARING IN PERSON OR BY AUTHORIZED REPRESENTATIVE, REGARDLESS OF WHETHER AN APPEARANCE HAS BEEN ENTERED, MAY RESULT IN THE ALLEGATIONS CONTAINED IN THE FORMAL CHARGES BEING ADMITTED AS TRUE AND THE PROPOSED RECOMMENDATION OF THE COMMISSION MAY BE GRANTED BY DEFAULT.

(9) A party may file a motion no later than 10 days after the hearing to set aside a default and to reopen the record if a proposal for decision or a final decision has not been issued.

(A) The judge may grant the motion, set aside the default and reopen the hearing for good cause shown.

(B) If the motion to set aside the default judgment is granted, it shall be the responsibility of the parties to either settle the matter informally or to request a rehearing on the merits. Whenever possible, the rehearing of the case shall occur with the judge that heard the default matter.

(10) Due to the often voluminous nature of the records properly received into evidence by the judge, the party introducing such documentary evidence may paginate each exhibit or flag pertinent pages in each exhibit in order to expedite the hearing and the decision-making process.

(11) The schedule of disciplinary sanctions set out in §141.064 of the Texas Human Resources Code is adopted by the Board and the judge shall use such sanctions, as well as any sanctions adopted by Board rule.

(12) Within a reasonable time after the conclusion of the hearing, the judge shall prepare and serve on the parties a proposal for decision that includes the judge's findings of fact and conclusions of law and a proposed order recommending a sanction to be imposed, if any.

(13) Each hearing may be recorded by a court reporter in accordance with the APA and SOAH rules. The cost of the transcription of the statement of facts shall be borne by the party requesting the transcript and said request shall be sent directly to the court reporter and the requesting party shall notify the other party in writing of the request.

(14) A party who appeals a final decision of the Board shall pay all costs of preparation of the original and certified copy of the record of the proceeding that is required to be transmitted to the reviewing court.

(A) The record in a contested case shall consist of the following:

(i) all pleadings, motions, intermediate rulings;

(ii) all evidence received or considered by the judge;

(iii) a statement of the matters officially noticed;

(iv) questions and offers of proof, objections and rulings thereon;

(v) proposed findings and exceptions;

(vi) any decision, opinion or report by the judge presiding at the hearing;

(vii) all Commission correspondence submitted to the judge in connection with his or her consideration of the case; and

(viii) the transcribed statement of facts (question and answer testimony) from the hearing unless the parties have stipulated to all or part of the statement of facts.

(B) Calculation of costs for preparation of the record shall be governed by the same procedure utilized by the Commission in preparing documents responsive to open records requests under the Public Information Act. These costs shall include, but not be limited to, the cost of research, document retrieval, copying and labor.

(15) Notice of Order. The Commission shall notify by mail a Certified Officer whose conduct was the subject of a disciplinary hearing of the final order. The notice of order shall include:

(A) the acts or omissions, if any, by the officer that violated the code of ethics;

(B) a statement of the evidence relied upon;

(C) the identification of each section of the code of ethics that was violated by the acts or omissions of the officer;

(D) the Board's disposition concerning the officer's certification; and

(E) notification of the individual's right to rehearing and appeal.

Source Note: The provisions of this §349.370 adopted to be effective May 1, 2010, 35 TexReg 3289