22 TAC §501.93
The Texas State Board of Public Accountancy adopts an amendment
to §501.93, concerning Responses with a change to the proposed text as
published in the November 30, 2001, issue of the
Texas Register
(26 TexReg 9733). The change is in subsection (d) in
which the following sentence should be added to the end of the sentence, "Any
such party may seek a protective order concerning the place of deposition
on grounds stated in Texas Rule of Civil Procedure 192.6." Because this change
is more liberal than the rule proposed, the Board did not re-notice the rule.
The amendment allows and makes explicit the Board's authority to depose
a party to a contested case at the Board's offices in Austin, Texas as set
out in the Texas Rules of Civil Procedure for civil cases.
The amendment will function by allowing the Board to depose a party to
a contested case at the Board's offices in Austin, Texas.
One comment was received regarding adoption of the rule. The commenter
alleged that the Board's proposed amendment to Rule 501.93 directly contradicts
Section 2001.096 of the Administrative Procedure Act ("APA"), which describes
where depositions may be taken in a contested administrative case. In response,
the Board notes that Section 2001.001 of the APA states that the APA sets
minimum standards of procedure. The State Office of Administrative Hearings
("SOAH") promulgates its own set of procedural rules that supplement the APA
and control in contested cases falling within its jurisdiction, as the Board's
contested cases do. However, SOAH's rules are silent regarding deposition
locations; therefore, the Board may itself supplement the APA's provisions
regarding deposition locations.
In support of the Board's authority to supplement Section 2001.096 of the
APA, Texas Rule of Civil Procedure 199.2(b)(2)(c) permits the deposition of
a party to a civil case in the county of suit. The Board's contested cases
are initiated and completed in Travis County in Austin, Texas. Where SOAH's
Rules are silent, the Texas Rules of Civil Procedure are often used by SOAH
to determine the proper procedural result in a contested case. Therefore,
the Board's reliance on the Texas Rules of Civil Procedure in the adoption
of the amendment to Rule 501.93 is in keeping with this custom.
The commenter also alleged that depositions of parties to contested cases
taken in Austin, Texas would create undue financial hardship for licensees
so deposed. In response, the Board notes that parties to civil litigation
routinely bear such costs. In addition, the cost of a deposition, wherever
the location, is a cost that must be shouldered by both parties to a case.
Therefore, no undue financial hardship will be imposed against licensees by
the Board's adoption of the amendment to Rule 501.93.
In considering the rule and this comment, the Board decided that it should
also expressly incorporate the protections afforded litigants in Texas Rule
of Civil Procedure 192.6. Therefore, a party who can show harassment, undue
burden, or annoyance among other things, may not be subject to deposition
in Austin.
The amendment is adopted under the Public Accountancy Act, Tex.
Occupations Code, Section 901.151 (Vernon 2001) which provides the agency
with the authority to amend, adopt and repeal rules deemed necessary or advisable
to effectuate the Act.
§501.93.Responses.
(a)
An applicant, certificate or registration holder shall
substantively respond in writing to any communication from the board requesting
a response, within 30 days of the mailing of such communication by registered
or certified mail to the last address furnished to the board by the applicant,
certificate or registration holder.
(b)
Failure to respond substantively to written board communications,
or failure to furnish requested documentation and/or working papers, constitutes
conduct indicating lack of fitness to serve the public as a professional accountant.
(c)
Each applicant, certificate holder and each person required
to be registered with the board under the Act shall notify the board, in writing,
of any and all changes in such person's mailing address and the effective
date thereof within 30 days before or after such effective date.
(d)
An applicant, certificate or registration holder who is
a party to a contested case in a disciplinary action brought by the board
may be deposed at the board's offices in Austin, Texas. Any such party may
seek a protective order concerning the place of deposition on grounds stated
in Texas Rule of Civil Procedure 192.6.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on January 17, 2002.
TRD-200200262
William Treacy
Executive Director
Texas State Board of Public Accountancy
Effective date: February 6, 2002
Proposal publication date: November 30, 2001
For further information, please call: (512) 305-7848