SECTION 3.205. Administrative Review

(a) Filing of request.

(1) Any person who believes they have been aggrieved in connection with an action of the Texas Boll Weevil Eradication Foundation (the foundation) may file a request for administrative review by the department under the Texas Agriculture Code, §74.1095.

(2) A request must be in writing and received by the department within 90 days after the action that forms the basis of the complaint. Formal requests must comply with the following requirements, and shall be resolved in accordance with the procedure set forth below. Copies of the request and any supporting documentation must be mailed or delivered by the requesting party to the department and the foundation.

(b) Contents of request. A request filed under this section must be sworn and contain:

(1) a specific identification of the statutory or regulatory provision(s) that the action complained of is alleged to have violated;

(2) a specific description of each act alleged to have violated the statutory or regulatory provision(s) identified in paragraph (1) of this subsection, including an identification of the issue or issues to be resolved;

(3) a precise statement of the relevant facts;

(4) argument and authorities in support of the allegations made;

(5) any supporting documentation available; and

(6) a statement that a copy of the request has been mailed or delivered to the foundation.

(c) Informal Review.

(1) Once a request is received by the department, it shall be forwarded to the Office of General Counsel for review.

(2) The General Counsel, or General Counsel's designee, shall have the authority, prior to appeal to the commissioner or commissioner's designee, to settle and resolve the complaint that is the subject of the request, and may solicit additional information regarding the matters alleged in the request for review from the requester, the foundation, or any other relevant party. Copies of any additional information received shall be provided to both the requester and the foundation.

(3) If the issues raised in the request are not resolved by mutual agreement, the General Counsel will issue a written determination on the request for review as follows.

(A) If the General Counsel determines that no violation of rules or statutes has occurred, the General Counsel shall so inform the requesting party and the foundation by letter, setting forth the reasons for the determination.

(B) If the General Counsel determines that a violation of the rules or statutes has occurred, the General Counsel shall so inform the requesting party and the foundation by letter, setting forth the reasons for the determination and the appropriate remedial action.

(4) If the General Counsel's determination is not appealed, that determination shall serve as the final agency determination on the complaint.

(d) Appeal to Commissioner.

(1) The General Counsel's determination on a complaint may be appealed to the commissioner by the requester, or the commissioner's designee, or the foundation. An appeal of the General Counsel's determination must be in writing and must be received by the department no later than 15 days after the date of the General Counsel's determination. The appeal shall include specific reasons why the requester or the foundation disagrees with the General Counsel's determination. Copies of the appeal must be mailed or delivered by the party appealing to the other party.

(2) The commissioner, or the commissioner's designee, shall review the request, any supporting documentation, the General Counsel's determination, and the appeal and issue a determination on the request. The appeal shall be limited to review of the General Counsel's determination and documentation presented by parties in support of their positions.

(3) The commissioner's determination of the appeal shall be the final administrative action of the agency and is subject to judicial review under Chapter 2001 of the Texas Government Code.

(e) Actions Subject to Review.

(1) A request for review filed under the Code, §74.1095, shall be based on actions taken by the foundation under the Code, Chapter 74, Subchapter D.

(2) Actions subject to review under the Code, §74.1095, do not include:

(A) alleged violations that may be prosecuted administratively by the department under the Code, §12.020;

(B) bid protests and other disputes arising from a bid made or a contract entered into with the foundation under its procurement manual, and covered by the foundation's procurement dispute resolution procedure; or

(C) disputes that have been resolved through a civil or criminal action brought in a court of law.

(f) Appropriate remedial actions. If the department, or the commissioner on appeal, determines that the foundation acted in a manner that warrants action by the department, the department may prescribe corrective action to be carried out by the foundation, or refer its determination to the appropriate entity in accordance with the Code, §74.126. The department is not authorized to award monetary damages to a person filing a request under this section.

Source Note: The provisions of this §3.205 adopted to be effective May 1, 2006, 31 TexReg 3528; amended to be effective June 26, 2023, 48 TexReg 3405