Texas Administrative Code › Title 22 - EXAMINING BOARDS › Part 14 - TEXAS OPTOMETRY BOARD › Chapter 277 - PRACTICE AND PROCEDURE › Section 277.2 - Disciplinary Proceedings

Current through Reg. 49, No. 28; July 12, 2024
(a) General
				statement. In a contested case before the Board, proceedings shall be governed
				by the Administrative Procedure Act (APA), except as specifically provided in
				the Optometry Act. In any contested case, opportunity shall be afforded to all
				parties to respond and present evidence and argument on all issues involved.
				Unless precluded by law, informal disposition may be made of any contested case
				by stipulation, agreed settlement, consent order, default, refund of
				examination fees, remedial plan or dismissal.
(b) Informal disposition of contested case.
				Prior to the imposition of disciplinary sanctions, remedial plan, or
				administrative penalties against a respondent (a licensee or a person issued a
				cease and desist order), the respondent shall be offered an opportunity to
				attend an informal conference and show compliance with all requirements of law,
				in accordance with the APA.
(1) Informal
				conferences shall be attended by the Executive Director, the Board's legal
				counsel, the two members of the Investigation-Enforcement Committee, a public
				member, and other representatives of the Board as the Executive Director and
				legal counsel may deem necessary for the proper conduct of the conference. The
				respondent and/or the authorized representative may attend the informal
				conference and shall be provided an opportunity to be heard.
(2) In any case where charges are based upon
				information provided by a person who filed a complaint with the Board
				(complainant), the complainant may attend the informal conference, and shall be
				provided with an opportunity to be heard. Nothing herein requires a complainant
				to attend an informal conference.
(3) Notice of the informal conference shall
				include:
(A) a statement of the legal
				authority, jurisdiction, and alleged conduct under which the enforcement action
				is based, with a reference to the particular section(s) of the statutes and
				rules involved;
(B) an offer for
				the respondent to attend an informal conference at a specified time and place
				and show compliance with all requirements of law, in accordance with Chapter
				2001 of the Administrative Procedure Act;
(C) a statement that the respondent has an
				opportunity for a hearing before the State Office of Administrative Hearings on
				the allegations; and
(D) the
				following statement in capital letters in 12 point boldface type: FAILURE TO
				RESPOND TO THE ALLEGATIONS, BY EITHER PERSONAL APPEARANCE AT THE INFORMAL
				CONFERENCE OR IN WRITING, WILL RESULT IN THE ALLEGATIONS BEING ADMITTED AS TRUE
				AND THE RECOMMENDED SANCTION MADE AT THE INFORMAL CONFERENCE BEING GRANTED BY
				DEFAULT. The notice shall be served by delivering a copy to the respondent or
				licensee in person, by courier receipted delivery, or by certified or
				registered mail, return receipt requested, to the licensee's last known address
				of record as shown by agency records, not less than 10 days prior to the date
				of the conference.
(4)
				The respondent shall respond by either personal appearance at the informal
				conference or in writing no later than the date of the informal conference. If
				the respondent chooses to respond in writing, the response shall admit or deny
				each of the allegations. If the respondent intends to deny only a part of an
				allegation, the respondent shall specify so much of it is true and shall deny
				only the remainder. The response shall also include any other matter, whether
				of law or fact, upon which the respondent intends to rely for his or her
				defense. If the respondent fails to respond to the notice specified in this
				subsection, the matter will be considered as a default case and the respondent
				will be deemed to have:
(A) admitted all the
				factual allegations in the notice specified in this subsection;
(B) waived the opportunity to show compliance
				with the law;
(C) waived notice of
				a hearing;
(D) waived the
				opportunity for a hearing on the allegations; and
(E) waived objection to the recommended
				sanctions made at the informal conference.
(5) The Investigation-Enforcement Committee
				may recommend that the Board enter a default order, based upon the allegations
				set out in the notice specified in this subsection, adopting the recommended
				sanctions made at the informal conference. Upon consideration of the case, the
				Board may enter a default order under §2001.056 of the Administrative
				Procedure Act or direct that the case be set for a hearing at the State Office
				of Administrative Hearings.
(6) Any
				default judgment granted under this section will be entered on the basis of the
				factual allegations in the notice and upon proof of proper notice to the
				respondent's address of record as specified in paragraph (3) of this
				subsection.
(7) A motion for
				rehearing which requests that the Board vacate its default order under this
				section shall be granted if the motion presents convincing evidence that the
				failure to respond to the notice specified in this subsection was not
				intentional or the result of conscious indifference, but due to accident or
				mistake, provided that the respondent has a meritorious defense to the factual
				allegations contained in the notice specified in this subsection and the
				granting thereof will not result in delay or injury to the public or the
				Board.
(8) Informal conferences
				shall not be deemed to be meetings of the Board and no formal record of the
				proceedings at the conferences shall be made or maintained.
(9) The Investigation-Enforcement Committee
				shall consider the Penalty Schedule in §
										277.6 of this title to determine
				the parameters of any administrative fine or penalty to recommend to the
				respondent and the Board. The Investigation-Enforcement Committee may recommend
				a settlement to the respondent that includes an agreed order to refund all or
				part of the examination fee paid by the complainant to the respondent. This
				settlement must be approved by the Board pursuant to subsection
				(b)(10).
(10) Any proposed order
				shall be presented to the Board for its review. At the conclusion of its
				review, the Board shall approve, amend, or disapprove the proposed order.
				Should the Board approve the proposed order, the appropriate notation shall be
				made in the minutes of the Board and the proposed order shall be entered as an
				official action of the Board. Should the Board amend the proposed order, the
				Executive Director shall contact the respondent to seek concurrence. If the
				respondent does not concur, the provisions of the next sentence shall apply.
				Should the Board disapprove the proposed order, the case shall be rescheduled
				for purposes of reaching an agreed order or in the alternative forwarded to the
				State Office of Administrative Hearings for formal action.