Part 1.
TEXAS BOARD OF ARCHITECTURAL EXAMINERS
Chapter 1.
ARCHITECTS
Subchapter L. HEARINGS--CONTESTED CASES
22 TAC §1.231
The Texas Board of Architectural Examiners adopts the repeal
of the following rule for Title 22, Chapter 1, Subchapter L: §1.231,
pertaining to the case hearings conducted by State Office of Administrative
Hearings without changes to the proposal as published in the December 28,
2001, issue of the
Texas Register
(26 TexReg
10701) and will not be republished. TRD-200108016
Simultaneously, the agency is adopting a new rule with section number 1.231
to replace the rule being repealed. Due to the extensive modifications in
the new rule, amending the existing rule is less practical than repealing
the existing rule and adopting a new rule.
The repealed rule has been replaced with an updated rule that will more
clearly define the Board's procedures and is more consistent with governing
law.
The agency received no comments pertaining to the repeal of this rule.
The repeal is adopted pursuant to §§3(b), 3(d), and
5(b) of Article 249a, Vernon's Texas Civil Statutes, which provide the Texas
Board of Architectural Examiners with authority to promulgate rules and include
implied authority to repeal rules that have been promulgated.
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 June 17, 2002.
TRD-200203723
Cathy L. Hendricks, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Effective date: July 7, 2002
Proposal publication date: December 28, 2001
For further information, please call: (512) 305-8535
22 TAC §1.231
The Texas Board of Architectural Examiners adopts new §1.231
for Title 22, Chapter 1, Subchapter L, concerning procedures for formal hearings
without changes to the text as published in the December 28, 2001, issue of
the
Texas Register
(26 TexReg 10701) and will
not be republished. TRD-200108017.
This new rule states that the Administrative Procedure Act applies to all
contested cases involving matters under the jurisdiction of the Board and
states the Rules of Procedure of the State Office of Administrative Hearings
apply to formal hearings of contested cases conducted for the Board.
The new rule ensures that the agency's procedures will be clearly stated
and consistent with governing law.
The agency received no comments pertaining to the adoption of this new
rule.
The new rule is adopted pursuant to §§3(b), 3(d) and
5(b) of Article 249a, Vernon's Texas Civil Statutes, which provide the Texas
Board of Architectural Examiners with authority to promulgate rules and take
action to enforce them.
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 June 17, 2002.
TRD-200203724
Cathy L. Hendricks, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Effective date: July 7, 2002
Proposal publication date: December 28, 2001
For further information, please call: (512) 305-8535
22 TAC §1.232
The Texas Board of Architectural Examiners adopts an amendment
to rule §1.232 for Title 22, Chapter 1, Subchapter L, concerning the
board's responsibilities as they pertain to hearings for contested cases with
changes to the text as published in the December 28, 2001, issue of the
The amendment to this rule generally describes the Board's procedures for
addressing contested cases and ensures that the procedures are consistent
with governing law. The changes to the amendment, as published in the December
28, 2001, issue of the
Texas Register
, include
the addition of language regarding a party's right to file exceptions, briefs,
and replies to exceptions after a proposal for decision is submitted to the
agency and setting forth the procedure for filing such documents; the addition
of language regarding a party's right to request an oral hearing before the
Board and setting forth both the procedure for requesting an oral argument
and the amount of time to be allotted for an oral argument if one is allowed
by the Board; the addition of language regarding the time when the Board may
first act to render a final decision in a contested case; the addition of
language stating that the Board's final order in a contested case may adopt
by reference the findings of fact and conclusions of law submitted by the
administrative law judge; the addition of language stating that the party
who appeals a final decision in a contested case must pay for the preparation
of the record for review; and the addition of a penalty matrix setting forth
recommended penalties for various violations by registrants.
The amendment to this rule will result in the agency's procedures being
clearly stated and consistent with governing law.
The agency received no comments pertaining to the proposal to amend this
rule.
The amendment to this rule is adopted pursuant to §§3(b),
3(d), and 5(b) of Article 249a, Vernon's Texas Civil Statutes, which provide
the Texas Board of Architectural Examiners with authority to promulgate rules
and take action to enforce them.
§1.232.Board Responsibilities.
(a)
The Board shall investigate Contested Case matters and
attempt to resolve Contested Cases informally as provided in Subchapter I
of the Rules and Regulations of the Board. However, if a Contested Case is
not settled informally pursuant to Subchapter I, it shall be referred to SOAH
for a formal hearing to determine whether there has been a violation of any
of the statutory provisions or rules enforced by the Board.
(b)
A formal hearing shall be conducted in accordance with
the Rules of Procedure of SOAH.
(c)
After a formal hearing of a Contested Case, the SOAH administrative
law judge who conducted the formal hearing shall prepare a proposal for decision
and submit it to the Board so that the Board may render a final decision with
regard to the Contested Case. The proposal for decision shall include findings
of fact and conclusions of law.
(d)
Any party of record in a Contested Case who is adversely
affected by the proposal for decision may file exceptions and briefs within
twenty (20) days after the date of service of the proposal for decision. Replies
to exceptions and briefs may be filed within fifteen (15) days after the date
for the filing of exceptions and briefs. Exceptions, briefs, and replies shall
be filed with the Board and copies shall be served on the administrative law
judge and on all other parties in the same manner as for serving other documents
in a Contested Case.
(e)
Any party of record in a Contested Case may request an
oral hearing before the Board. A request for an oral hearing shall be filed
with the Board and copies shall be served on the administrative law judge
and on all other parties in the same manner as for serving other documents
in a Contested Case. The Board, in its sole discretion, shall determine whether
to grant or deny a request for an oral hearing. If a request for an oral hearing
is granted, each party of record shall be allotted thirty (30) minutes to
make an oral presentation to the Board.
(f)
Upon the expiration of the time provided for the filing
of exceptions and briefs or, if exceptions and briefs are filed, upon the
tenth (10th) day following the time provided for the filing of replies to
exceptions and briefs, the Board may render a decision to finally resolve
a Contested Case. The Board may change a finding of fact or conclusion of
law made by an administrative law judge or may vacate or modify an order issued
by an administrative law judge only if the Board determines:
(1)
that the administrative law judge did not properly apply
or interpret applicable law, agency rules, written policies, or prior administrative
decisions;
(2)
that a prior administrative decision on which the administrative
law judge relied is incorrect or should be changed; or
(3)
that a technical error in a finding of fact should be changed.
(g)
If the Board makes a change to a finding of fact or conclusion
of law or vacates or modifies an order pursuant to subsection (f) of this
section, the Board must state in writing the specific reason and the legal
basis for the change.
(h)
The Board shall issue a written order regarding the Board's
decision to finally resolve a Contested Case that is not settled informally.
The written order shall include findings of fact and conclusions of law that
are based on the official record of the Contested Case. The written order
may adopt by reference the findings of fact and conclusions of law made by
an administrative law judge and included in the proposal for decision submitted
to the Board.
(i)
Motions for rehearing and appeals may be filed and judicial
review of final decisions of the Board may be sought pursuant to the Administrative
Procedure Act. The party who appeals a final decision in a Contested Case
shall be responsible for the cost of the preparation of the original or a
certified copy of the record of the agency proceeding that is required to
be sent to the reviewing court.
(j)
The Board and the administrative law judge who presides
over the formal hearing in a Contested Case shall refer to the following guidelines
to determine the appropriate penalty for a violation of any of the statutory
provisions or rules enforced by the Board:
Figure: 22 TAC §1.232(j)
(k)
The penalty for a violation of any of the statutory provisions
or rules enforced by the Board may vary from the penalty recommended in subsection
(j) of this section if justified by the circumstances of the matter or the
disciplinary history of the respondent.
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 June 17, 2002.
TRD-200203726
Cathy L. Hendricks, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Effective date: July 7, 2002
Proposal publication date: December 28, 2001
For further information, please call: (512) 305-8535
22 TAC §§1.233 - 1.276
The Texas Board of Architectural Examiners adopts the repeal
of the following rules for Title 22, Chapter 1, Subchapter L: §1.233,
pertaining to jurisdiction and requests for hearings or for An administrative
law judge; §1.234, pertaining to filing notices, pleadings, motions,
answers, affidavits and all other filings in a contested case; §1.235,
pertaining to stipulations and agreements as they concern procedural matters; §1.236,
pertaining to the service of documents concerning notices of hearing, default
orders, prehearing orders, proposals for decisions, and decisions and orders
of the board; §1.237, pertaining to conduct and decorum during proceedings; §1.238,
pertaining to the classifications of parties; §1.239, pertaining to appearances
in person or by a representative and to waivers and defaults; §1.240,
pertaining to classification of pleadings; §1.241, pertaining to form
and content of pleadings; §1.242, pertaining to discovery rights; §1.243,
pertaining to motions and amendments; §1.244, pertaining to prehearing
conferences and orders; §1.245, pertaining to notice of hearings; §1.246,
pertaining to certificates of registration; §1.247, pertaining to conduct
of hearings; §1.248, pertaining to formal exceptions; §1.249, pertaining
to motions for postponement, continuance, withdrawal, or dismissal of matters
before the board; §1.250, pertaining to the place and nature of hearings; §1.251,
pertaining to powers and authority of the administrative law judge; §1.252,
pertaining to the order of proceedings; §1.253, pertaining to reporters
and transcript; §1.254, pertaining to telephone hearings; §1.255,
pertaining to dismissal or settlement without a hearing; §1.256, pertaining
to rules of evidence; §1.257, pertaining to documentary evidence; §1.258,
pertaining to official notice of facts; §1.259, pertaining to prepared
or prefiled testimony; §1.260, pertaining to limitations on the number
of witnesses; §1.261, pertaining to exhibits; §1.262, pertaining
to offers of proof; §1.263, pertaining to depositions; §1.264, pertaining
to subpoenas; §1.265, pertaining to proposals for decision; §1.266,
pertaining to filing exceptions, briefs, and replies; §1.267, pertaining
to the form and content of briefs, exceptions, and replies; §1.268, pertaining
to oral arguments; §1.269, pertaining to final decisions and orders; §1.270,
pertaining to administrative finality; §1.271, pertaining to motions
for rehearing; §1.272, pertaining to the rendering of a final decision
or order; §1.273, pertaining to the payment of an administrative penalty; §1.274,
pertaining to judicial review; §1.275, pertaining to what the record
in a contested case shall include; and §1.276 pertaining to complaints.
The repeals are being adopted without changes to the proposal as published
in the December 28, 2001, issue of the
Texas Register
(26 TexReg 10703) and will not be republished. TRD-200108018.
Simultaneously, the agency is adopting a new rule with section number 1.233
to replace the rules being repealed.
Due to the extensive modifications in the new rule, amending the existing
rules is less practical than repealing the existing rules and adopting a new
rule.
Repealing these rules makes it possible to adopt new and updated rules
which more clearly define the Board's procedures and are more consistent with
governing law.
The agency received no comments pertaining to the repeal of these rules.
The repeals are adopted pursuant to §§3(b), 3(d), and
5(b) of Article 249a, Vernon's Texas Civil Statutes, which provide the Texas
Board of Architectural Examiners with authority to promulgate rules and include
implied authority to repeal rules that have been promulgated.
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 June 17, 2002.
TRD-200203725
Cathy L. Hendricks, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Effective date: July 7, 2002
Proposal publication date: December 28, 2001
For further information, please call: (512) 305-8535
22 TAC §1.233
The Texas Board of Architectural Examiners adopts new rule §1.233
for Title 22, Chapter 1, Subchapter L, concerning the application and construction
of procedures for hearings on contested cases with changes to the text as
published in the December 28, 2001, issue of the
Texas Register
(26 TexReg 10704). TRD-200108020.
This rule states that the State Office of Administrative Hearings (SOAH)
will conduct formal hearings in accordance with the Administrative Procedure
Act and Chapter 155 of the Rules of Procedure of SOAH. It states that the
statute will control any conflict between the Board's rules or a prior decision
of the Board and any statutory provisions applicable to a contested case.
It requires the presiding administrative law judge to consider applicable
policy of the Board if an issue is not susceptible to resolution by reference
to the APA and other applicable statutes. The change to the new rule as proposed
involved changing the first sentence of the rule by replacing "in accordance
with the APA and with Chapter 155 of the Rules of Procedure of SOAH" with
"in accordance with the APA, the Rules of Procedure of SOAH, the Architects'
Registration Law, the Rules and Regulations of the Board, and case law...".
The new rule ensures that the agency's procedures will be clearly stated
and consistent with governing law.
The agency received no comments pertaining to the adoption of this new
rule.
The new rule is adopted pursuant to §§3(b), 3(d), and
5(b) of Article 249a, Vernon's Texas Civil Statutes, which provide the Texas
Board of Architectural Examiners with authority to promulgate rules and take
action to enforce them.
§1.233.Application and Construction of Procedures.
(a)
SOAH shall conduct formal hearings in accordance with the
APA, the Rules of Procedure of SOAH, the Architects' Registration Law, the
Rules and Regulations of the Board, and case law, provided that:
(1)
An administrative law judge may, by order, modify the requirements
of the Rules of Procedure of SOAH and supplement other procedural requirements
of law to promote the fair and efficient handling of a Contested Case; and
(2)
An administrative law judge may modify the procedural requirements
of the Rules of Procedure of SOAH in appropriate cases to facilitate resolution
of issues if doing so does not prejudice any of a party's rights or contravene
applicable statutes.
(b)
If there is any conflict between the Rules and Regulations
of the Board or a prior decision of the Board and any of the statutory provisions
applicable to a Contested Case, the statute controls.
(c)
Not all contested procedural issues may be susceptible
to resolution by reference to the APA and other applicable statutes, the Rules
of Procedure of SOAH, the Rules and Regulations of the Board, and case law.
When they are not, the presiding administrative law judge shall consider the
Texas Rules of Civil Procedure (TRCP) as interpreted and construed by Texas
case law, and shall consider persuasive authority established in other forums,
in order to issue orders and rulings that are just in the circumstances of
the Contested Case.
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 June 17, 2002.
TRD-200203727
Cathy L. Hendricks, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Effective date: July 7, 2002
Proposal publication date: December 28, 2001
For further information, please call: (512) 305-8535
Subchapter K. HEARINGS--CONTESTED CASES
22 TAC §3.231
The Texas Board of Architectural Examiners adopts the repeal
of the following rule for Title 22, Chapter 3, Subchapter K: §3.231,
pertaining to the case hearings conducted by the State Office of Administrative
Hearings without changes to the proposal as published in the December 28,
2001, issue of the
Texas Register
(26 TexReg
10707). TRD-200108025.
Simultaneously, the agency is adopting new §3.231 to replace the rule
being repealed. Due to the extensive modifications in the new rule, amending
the existing rule is less practical than repealing the existing rule and adopting
a new rule.
The repealed rule has been replaced with an updated rule that will more
clearly define the Board's procedures and is more consistent with governing
law.
The agency received no comments pertaining to the repeal of this rule.
The repeal is adopted pursuant to §4(a) of Article 249c,
Vernon's Texas Civil Statutes, which provide the Texas Board of Architectural
Examiners with authority to promulgate rules and include implied authority
to repeal rules that have been promulgated.
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 June 17, 2002.
TRD-200203728
Cathy L. Hendricks, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Effective date: July 7, 2002
Proposal publication date: December 28, 2001
For further information, please call: (512) 305-8535
22 TAC §3.231
The Texas Board of Architectural Examiners adopts new §3.231
for Title 22, Chapter 3, Subchapter K, concerning procedures for formal hearings
without changes to the text as published in the December 28, 2001, issue of
the
Texas Register
(26 TexReg 10708). TRD-200108026.
This rule states that the Administrative Procedure Act applies to all contested
cases involving matters under the jurisdiction of the Board and states the
Rules of Procedure of the State Office of Administrative Hearings apply to
formal hearings of contested cases conducted for the Board.
The new rule ensures that the agency's procedures will be clearly stated
and consistent with governing law.
The agency received no comments pertaining to the adoption of this new
rule.
The new rule is adopted pursuant to §4(a) of Article 249c,
Vernon's Texas Civil Statutes, which provide the Texas Board of Architectural
Examiners with authority to promulgate rules and take action to enforce them.
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 June 17, 2002.
TRD-200203729
Cathy L. Hendricks, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Effective date: July 7, 2002
Proposal publication date: December 28, 2001
For further information, please call: (512) 305-8535
22 TAC §3.232
The Texas Board of Architectural Examiners adopts an amendment
to §3.232 for Title 22, Chapter 3, Subchapter K, concerning the board's
responsibilities as they pertain to hearings for contested cases with changes
to the text as published in the December 28, 2001, issue of the
Texas Register
(26 TexReg 10709). TRD-200108028.
The amendment to this rule generally describes the Board's procedures for
addressing contested cases and ensures that the procedures are consistent
with governing law. The changes to the amendment, as published in the December
28, 2001 issue of the
Texas Register
, include
the addition of language regarding a party's right to file exceptions, briefs,
and replies to exceptions after a proposal for decision is submitted to the
agency and setting forth the procedure for filing such documents; the addition
of language regarding a party's right to request an oral hearing before the
Board and setting forth both the procedure for requesting an oral argument
and the amount of time to be allotted for an oral argument if one is allowed
by the Board; the addition of language regarding the time when the Board may
first act to render a final decision in a contested case; the addition of
language stating that the Board's final order in a contested case may adopt
by reference the findings of fact and conclusions of law submitted by the
administrative law judge; the addition of language stating that the party
who appeals a final decision in a contested case must pay for the preparation
of the record for review; and the addition of a penalty matrix setting forth
recommended penalties for various violations by registrants.
The amendment to this rule will result in the agency's procedures being
clearly stated and consistent with governing law.
The agency received no comments pertaining to the proposal to amend this
rule.
The amendment to this rule is adopted pursuant to §4(a)
of Article 249c, Vernon's Texas Civil Statutes, which provide the Texas Board
of Architectural Examiners with authority to promulgate rules and take action
to enforce them.
§3.232. Board Responsibilities.
(a)
The Board shall investigate Contested Case matters and
attempt to resolve Contested Cases informally as provided in Subchapter I
of the Rules and Regulations of the Board. However, if a Contested Case is
not settled informally pursuant to Subchapter I, it shall be referred to SOAH
for a formal hearing to determine whether there has been a violation of any
of the statutory provisions or rules enforced by the Board.
(b)
A formal hearing shall be conducted in accordance with
the Rules of Procedure of SOAH.
(c)
After a formal hearing of a Contested Case, the SOAH administrative
law judge who conducted the formal hearing shall prepare a proposal for decision
and submit it to the Board so that the Board may render a final decision with
regard to the Contested Case. The proposal for decision shall include findings
of fact and conclusions of law.
(d)
Any party of record in a Contested Case who is adversely
affected by the proposal for decision may file exceptions and briefs within
twenty (20) days after the date of service of the proposal for decision. Replies
to exceptions and briefs may be filed within fifteen (15) days after the date
for the filing of exceptions and briefs. Exceptions, briefs, and replies shall
be filed with the Board and copies shall be served on the administrative law
judge and on all other parties in the same manner as for serving other documents
in a Contested Case.
(e)
Any party of record in a Contested Case may request an
oral hearing before the Board. A request for an oral hearing shall be filed
with the Board and copies shall be served on the administrative law judge
and on all other parties in the same manner as for serving other documents
in a Contested Case. The Board, in its sole discretion, shall determine whether
to grant or deny a request for an oral hearing. If a request for an oral hearing
is granted, each party of record shall be allotted thirty (30) minutes to
make an oral presentation to the Board.
(f)
Upon the expiration of the time provided for the filing
of exceptions and briefs or, if exceptions and briefs are filed, upon the
tenth (10th) day following the time provided for the filing of replies to
exceptions and briefs, the Board may render a decision to finally resolve
a Contested Case. The Board may change a finding of fact or conclusion of
law made by an administrative law judge or may vacate or modify an order issued
by an administrative law judge only if the Board determines:
(1)
that the administrative law judge did not properly apply
or interpret applicable law, agency rules, written policies, or prior administrative
decisions;
(2)
that a prior administrative decision on which the administrative
law judge relied is incorrect or should be changed; or
(3)
that a technical error in a finding of fact should be changed.
(g)
If the Board makes a change to a finding of fact or conclusion
of law or vacates or modifies an order pursuant to subsection (f) of this
section, the Board must state in writing the specific reason and the legal
basis for the change.
(h)
The Board shall issue a written order regarding the Board's
decision to finally resolve a Contested Case that is not settled informally.
The written order shall include findings of fact and conclusions of law that
are based on the official record of the Contested Case. The written order
may adopt by reference the findings of fact and conclusions of law made by
an administrative law judge and included in the proposal for decision submitted
to the Board.
(i)
Motions for rehearing and appeals may be filed and judicial
review of final decisions of the Board may be sought pursuant to the Administrative
Procedure Act. The party who appeals a final decision in a Contested Case
shall be responsible for the cost of the preparation of the original or a
certified copy of the record of the agency proceeding that is required to
be sent to the reviewing court.
(j)
The Board and the administrative law judge who presides
over the formal hearing in a Contested Case shall refer to the following guidelines
to determine the appropriate penalty for a violation of any of the statutory
provisions or rules enforced by the Board:
Figure: 22 TAC §3.232(j)
(k)
The penalty for a violation of any of the statutory provisions
or rules enforced by the Board may vary from the penalty recommended in subsection
(j) of this section if justified by the circumstances of the matter or the
disciplinary history of the respondent.
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 June 17, 2002.
TRD-200203731
Cathy L. Hendricks, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Effective date: July 7, 2002
Proposal publication date: December 28, 2001
For further information, please call: (512) 305-8535
22 TAC §§3.233 - 3.275
The Texas Board of Architectural Examiners adopts the repeal
of the following rules for Title 22, Chapter 3, Subchapter K: §3.233,
pertaining to jurisdiction and requests for hearings or for an administrative
law judge; §3.234, pertaining to filing notices, pleadings, motions,
answers, affidavits and all other filings in a contested case; §3.235,
pertaining to stipulations and agreements as they concern procedural matters; §3.236,
pertaining to the service of documents concerning notices of hearing, default
orders, prehearing orders, proposals for decisions, and decisions and orders
of the board; §3.237, pertaining to conduct and decorum during proceedings; §3.238,
pertaining to the classifications of parties; §3.239, pertaining to appearances
in person or by a representative and to waivers and defaults; §3.240,
pertaining to classification of pleadings; §3.241, pertaining to form
and content of pleadings; §3.242, pertaining to discovery rights; §3.243,
pertaining to motions and amendments; §3.244, pertaining to prehearing
conferences and orders; §3.245, pertaining to notices of hearings; §3.246,
pertaining to certificates of registration; §3.247, pertaining to conduct
of hearings; §3.248, pertaining to formal exceptions; §3.249, pertaining
to motions for postponement, continuance, withdrawal, or dismissal of matters
before the board; §3.250, pertaining to the place and nature of hearings; §3.251,
pertaining to powers and authority of the administrative law judge; §3.252,
pertaining to the order of proceedings; §3.253, pertaining to reporters
and transcripts; §3.254, pertaining to telephone hearing; §3.255,
pertaining to dismissal or settlement without a hearings; §3.256, pertaining
to rules of evidence; §3.257, pertaining to documentary evidence; §3.258,
pertaining to official notice of facts; §3.259, pertaining to prepared
or prefiled testimony; §3.260, pertaining to limitations on the number
of witnesses; §3.261, pertaining to exhibits; §3.262, pertaining
to offers of proof; §3.263, pertaining to depositions; §3.264, pertaining
to subpoenas; §3.265, pertaining to proposals for decision; §3.266,
pertaining to filing exceptions, briefs, and replies; §3.267, pertaining
to the form and content of briefs, exceptions, and replies; §3.268, pertaining
to oral arguments; §3.269, pertaining to final decisions and orders; §3.270,
pertaining to administrative finality; §3.271, pertaining to motions
for rehearing; §3.272, pertaining to the rendering of a final decision
or order; §3.273, pertaining to judicial review; §3.274, pertaining
to what the record in a contested case shall include; and §3.275, pertaining
to complaints. The repeals are adopted without changes to the proposal as
published in the December 28, 2001, issue of the
Texas Register
(26 TexReg 10709). TRD-200108027.
Simultaneously, the agency is adopting a new rule with section number §3.233
to replace the rules being repealed.
Due to the extensive modifications in the new rule, amending the existing
rules is less practical than repealing the existing rules and adopting a new
rule.
Repealing these rules makes it possible to adopt new and updated rules
which more clearly define the Board's procedures and are more consistent with
governing law.
The agency received no comments pertaining to the repeal of these rules.
The repeal is adopted pursuant to §4(a) of Article 249c,
Vernon's Texas Civil Statutes, which provide the Texas Board of Architectural
Examiners with authority to promulgate rules and include implied authority
to repeal rules that have been promulgated.
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 June 17, 2002.
TRD-200203730
Cathy L. Hendricks, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Effective date: July 7, 2002
Proposal publication date: December 28, 2001
For further information, please call: (512) 305-8535
22 TAC §3.233
The Texas Board of Architectural Examiners adopts new §3.233
for Title 22, Chapter 3, Subchapter K, concerning the application and construction
of procedures for hearings on contested cases with changes to the text as
published in the December 28, 2001, issue of the
Texas Register
(26 TexReg 10710). TRD-200108029.
This rule states that the State Office of Administrative Hearings (SOAH)
will conduct formal hearings in accordance with the Administrative Procedure
Act and Chapter 155 of the Rules of Procedure of SOAH. It states that the
statute will control any conflict between the Board's rules or a prior decision
of the Board and any statutory provisions applicable to a contested case.
It requires the presiding administrative law judge to consider applicable
policy of the Board if an issue is not susceptible to resolution by reference
to the APA and other applicable statutes. The change to the new rule as proposed
involved changing the first sentence of the rule by replacing "in accordance
with the APA and with Chapter 155 of the Rules of Procedure of SOAH" with
"in accordance with the APA, the Rules of Procedure of SOAH, the Landscape
Architects' Registration Law, the Rules and Regulations of the Board, and
case law...".
The new rule ensures that the agency's procedures will be clearly stated
and consistent with governing law.
The agency received no comments pertaining to the adoption of this new
rule.
The new rule is adopted pursuant to §4(a) of Article 249c,
Vernon's Texas Civil Statutes, which provide the Texas Board of Architectural
Examiners with authority to promulgate rules.
§3.233. Application and Construction of Procedures.
(a)
SOAH shall conduct formal hearings in accordance with the
APA, the Rules of Procedure of SOAH, the Landscape Architects' Registration
Law, the Rules and Regulations of the Board, and case law, provided that:
(1)
an administrative law judge may, by order, modify the requirements
of the Rules of Procedure of SOAH and supplement other procedural requirements
of law to promote the fair and efficient handling of a Contested Case; and
(2)
an administrative law judge may modify the procedural requirements
of the Rules of Procedure of SOAH in appropriate cases to facilitate resolution
of issues if doing so does not prejudice any of a party's rights or contravene
applicable statutes.
(b)
If there is any conflict between the Rules and Regulations
of the Board or a prior decision of the Board and any of the statutory provisions
applicable to a Contested Case, the statute controls.
(c)
Not all contested procedural issues may be susceptible
to resolution by reference to the APA and other applicable statutes, the Rules
of Procedure of SOAH, the Rules and Regulations of the Board, and case law.
When they are not, the presiding administrative law judge shall consider the
Texas Rules of Civil Procedure (TRCP) as interpreted and construed by Texas
case law, and shall consider persuasive authority established in other forums
in order to issue orders and rulings that are just in the circumstances of
the Contested Case.
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 June 17, 2002.
TRD-200203732
Cathy L. Hendricks, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Effective date: July 7, 2002
Proposal publication date: December 28, 2001
For further information, please call: (512) 305-8535
Subchapter K. HEARINGS--CONTESTED CASES
22 TAC §5.241
The Texas Board of Architectural Examiners adopts the repeal
of the following rule for Title 22, Chapter 5, Subchapter K: §5.241,
pertaining to the case hearings conducted by the State Office of Administrative
Hearings without change to the proposal as published in the December 28, 2001,
issue of the
Texas Register
(26 TexReg 10714).
TRD-200108034.
Simultaneously, the agency is adopting a new §5.241 to replace the
rule being repealed. Due to the extensive modifications proposed in the new
rule, amending the existing rule is less practical than repealing the existing
rule and adopting a new rule.
The repealed rule has been replaced with an updated rule that will more
clearly define the Board's procedures and is more consistent with governing
law.
The agency received no comments pertaining to the repeal of this rule.
The repeal is adopted pursuant to §5(a) of Article 249e,
Vernon's Texas Civil Statutes, which provide the Texas Board of Architectural
Examiners with authority to promulgate rules and include implied authority
to repeal rules that have been promulgated.
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 June 17, 2002.
TRD-200203733
Cathy L. Hendricks, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Effective date: July 7, 2002
Proposal publication date: December 28, 2001
For further information, please call: (512) 305-8535
22 TAC §5.241
The Texas Board of Architectural Examiners adopts new §5.241
for Title 22, Chapter 5, Subchapter K, concerning procedures for formal hearings
without changes to the text as published in the December 28, 2001, issue of
the
Texas Register
(26 TexReg 10714). TRD-200108035.
This rule states that the Administrative Procedure Act applies to all contested
cases involving matters under the jurisdiction of the Board and states the
Rules of Procedure of the State Office of Administrative Hearings apply to
formal hearings of contested cases conducted for the Board.
The new rules ensures that the agency's procedures will be clearly stated
and consistent with governing law.
The agency received no comments pertaining to the proposal of the new rule
The new rule is adopted pursuant to §5(d) and §5(b)
of Article 249e, Vernon's Texas Civil Statutes, which provide the Texas Board
of Architectural Examiners with authority to promulgate rules and take action
to enforce them.
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 June 17, 2002.
TRD-200203734
Cathy L. Hendricks, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Effective date: July 7, 2002
Proposal publication date: December 28, 2001
For further information, please call: (512) 305-8535
22 TAC §5.242
The Texas Board of Architectural Examiners adopts an amendment
to §5.242 for Title 22, Chapter 5, Subchapter K, concerning the board's
responsibilities as they pertain to hearings for contested cases with changes
to the text as published in the December 28, 2001, issue of the
Texas Register
(26 TexReg 10715). TRD-200108037.
The amendment to this rule generally describes the Board's procedures for
addressing contested cases and ensures that the procedures are consistent
with governing law. The changes to the amendment, as published in the December
28, 2001 issue of the Texas Register, include the addition of language regarding
a party's right to file exceptions, briefs, and replies to exceptions after
a proposal for decision is submitted to the agency and setting forth the procedure
for filing such documents; the addition of language regarding a party's right
to request an oral hearing before the Board and setting forth both the procedure
for requesting an oral argument and the amount of time to be allotted for
an oral argument if one is allowed by the Board; the addition of language
regarding the time when the Board may first act to render a final decision
in a contested case; the addition of language stating that the Board's final
order in a contested case may adopt by reference the findings of fact and
conclusions of law submitted by the administrative law judge; the addition
of language stating that the party who appeals a final decision in a contested
case must pay for the preparation of the record for review; and the addition
of a penalty matrix setting forth recommended penalties for various violations
by registrants.
The amendment to this rule will result in the agency's procedures being
clearly stated and consistent with governing law.
The agency received no comments pertaining to the proposal to amend this
rule.
The amendment to this rule is adopted pursuant to §5(b)
and §5(d) of Article 249e, Vernon's Texas Civil Statutes, which provide
the Texas Board of Architectural Examiners with authority to promulgate rules
and take action to enforce them.
§5.242.Board Responsibilities.
(a)
The Board shall investigate Contested Case matters and
attempt to resolve Contested Cases informally as provided in Subchapter I
of the Rules and Regulations of the Board. However, if a Contested Case is
not settled informally pursuant to Subchapter I, it shall be referred to SOAH
for a formal hearing to determine whether there has been a violation of any
of the statutory provisions or rules enforced by the Board.
(b)
A formal hearing shall be conducted in accordance with
the Rules of Procedure of SOAH.
(c)
After a formal hearing of a Contested Case, the SOAH administrative
law judge who conducted the formal hearing shall prepare a proposal for decision
and submit it to the Board so that the Board may render a final decision with
regard to the Contested Case. The proposal for decision shall include findings
of fact and conclusions of law.
(d)
Any party of record in a Contested Case who is adversely
affected by the proposal for decision may file exceptions and briefs within
twenty (20) days after the date of service of the proposal for decision. Replies
to exceptions and briefs may be filed within fifteen (15) days after the date
for the filing of exceptions and briefs. Exceptions, briefs, and replies shall
be filed with the Board and copies shall be served on the administrative law
judge and on all other parties in the same manner as for serving other documents
in a Contested Case.
(e)
Any party of record in a Contested Case may request an
oral hearing before the Board. A request for an oral hearing shall be filed
with the Board and copies shall be served on the administrative law judge
and on all other parties in the same manner as for serving other documents
in a Contested Case. The Board, in its sole discretion, shall determine whether
to grant or deny a request for an oral hearing. If a request for an oral hearing
is granted, each party of record shall be allotted thirty (30) minutes to
make an oral presentation to the Board.
(f)
Upon the expiration of the time provided for the filing
of exceptions and briefs or, if exceptions and briefs are filed, upon the
tenth (10th) day following the time provided for the filing of replies to
exceptions and briefs, the Board may render a decision to finally resolve
a Contested Case. The Board may change a finding of fact or conclusion of
law made by an administrative law judge or may vacate or modify an order issued
by an administrative law judge only if the Board determines:
(1)
that the administrative law judge did not properly apply
or interpret applicable law, agency rules, written policies, or prior administrative
decisions;
(2)
that a prior administrative decision on which the administrative
law judge relied is incorrect or should be changed; or
(3)
that a technical error in a finding of fact should be changed.
(g)
If the Board makes a change to a finding of fact or conclusion
of law or vacates or modifies an order pursuant to subsection (f) of this
section, the Board must state in writing the specific reason and the legal
basis for the change.
(h)
The Board shall issue a written order regarding the Board's
decision to finally resolve a Contested Case that is not settled informally.
The written order shall include findings of fact and conclusions of law that
are based on the official record of the Contested Case. The written order
may adopt by reference the findings of fact and conclusions of law made by
an administrative law judge and included in the proposal for decision submitted
to the Board.
(i)
Motions for rehearing and appeals may be filed and judicial
review of final decisions of the Board may be sought pursuant to the Administrative
Procedure Act. The party who appeals a final decision in a Contested Case
shall be responsible for the cost of the preparation of the original or a
certified copy of the record of the agency proceeding that is required to
be sent to the reviewing court.
(j)
The Board and the administrative law judge who presides
over the formal hearing in a Contested Case shall refer to the following guidelines
to determine the appropriate penalty for a violation of any of the statutory
provisions or rules enforced by the Board:
Figure: 22 TAC §5.242(j)
(k)
The penalty for a violation of any of the statutory provisions
or rules enforced by the Board may vary from the penalty recommended in subsection
(j) of this section if justified by the circumstances of the matter or the
disciplinary history of the respondent.
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 June 17, 2002.
TRD-200203736
Cathy L. Hendricks, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Effective date: July 7, 2002
Proposal publication date: December 28, 2001
For further information, please call: (512) 305-8535
22 TAC §§5.243 - 5.285
The Texas Board of Architectural Examiners adopts the repeal
of the following rules for Title 22, Chapter 5 Subchapter K: §5.243,
pertaining to jurisdiction and requests for hearings or for an administrative
law judge; §5.244, pertaining to filing notices, pleadings, motions,
answers, affidavits and all other filings in a contested case; §5.245,
pertaining to stipulations and agreements as they concern procedural matters; §5.246,
pertaining to the service of documents concerning notices of hearing, default
orders, prehearing orders, proposal for decisions, and decisions and orders
of the board; §5.247, pertaining to conduct and decorum during proceedings; §5.248,
pertaining to the classifications of parties; §5.249, pertaining to appearances
in person or by a representative and to waivers and defaults; §5.250,
pertaining to classification of pleadings; §5.251, pertaining to form
and content of pleadings; §5.252, pertaining to discovery rights; §5.253,
pertaining to motions and amendments; §5.254, pertaining to prehearing
conferences and orders; §5.255, pertaining to notice of hearing; §5.256,
pertaining to certificates of registration; §5.257, pertaining to conduct
of hearings; §5.258, pertaining to formal exceptions; §5.259, pertaining
to motions for postponement, continuance, withdrawal, or dismissal of matters
before the board; §5.260, pertaining to the place and nature of hearings; §5.261,
pertaining to powers and authority of the administrative law judge; §5.262,
pertaining to the order of proceedings; §5.263, pertaining to reporters
and transcript; §5.264, pertaining to telephone hearings; §5.265,
pertaining to dismissal or settlement without a hearings; §5.266, pertaining
to rules of evidence; §5.267, pertaining to documentary evidence; §5.268,
pertaining to official notice of facts; §5.269, pertaining to prepared
or prefiled testimony; §5.270, pertaining to limitations on the number
of witnesses; §5.271, pertaining to exhibits; §5.272, pertaining
to offers of proof; §5.273, pertaining to depositions; §5.274, pertaining
to subpoenas; §2.275, pertaining to proposals for decision; §5.276,
pertaining to filing exceptions, briefs, and replies; §5.277, pertaining
to the form and content of briefs, exceptions, and replies; §5.278, pertaining
to oral arguments; §5.279, pertaining to final decisions and orders; §5.280,
pertaining to administrative finality; §5.281, pertaining to motions
for a rehearing; §5.282, pertaining to the rendering of a final decision
or order; §5.283, pertaining to judicial review; §5.284, pertaining
to what the record in a contested case shall include; and §5.285 pertaining
to complaints. The repeals are adopted without changes to the proposal as
published in the December 28, 2001, issue of the
Texas Register
(26 TexReg 10716). TRD-200108036.
Simultaneously, the agency is adopting a new rule with section number 5.243
to replace the rules being repealed.
Due to the extensive modifications in the new rule, amending the existing
rules is less practical than repealing the existing rules and adopting a new
rule.
Repealing these rules makes it possible to adopt new and updated rules
which more clearly define the Board's procedures and are more consistent with
governing law.
The agency received no comments pertaining to the repeal of these rules.
The repeal is adopted pursuant to §5(a) of Article 249e
Vernon's Texas Civil Statutes, which provide the Texas Board of Architectural
Examiners with authority to promulgate rules and include implied authority
to repeal rules that have been promulgated.
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 June 17, 2002.
TRD-200203735
Cathy L. Hendricks, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Effective date: July 7, 2002
Proposal publication date: December 28, 2001
For further information, please call: (512) 305-8535
22 TAC §5.243
The Texas Board of Architectural Examiners adopts new §5.243
for Title 22, Chapter 5 Subchapter K, concerning the application and construction
of procedures for hearings on contested cases with changes to the proposal
as published in the December 28, 2001, issue of the
Texas Register
(26 TexReg 10717). TRD-200108038.
This rule states that the State Office of Administrative Hearings (SOAH)
will conduct formal hearings in accordance with the Administrative Procedure
Act and Chapter 155 of the Rules of Procedure of SOAH. It states that the
statute will control any conflict between the Board's rules or a prior decision
of the Board and any statutory provisions applicable to a contested case.
It requires the presiding administrative law judge to consider applicable
policy of the Board if an issue is not susceptible to resolution by reference
to the APA and other applicable statutes. The change to the new rule as proposed
involved changing the first sentence of the rule by replacing "in accordance
with the APA and with Chapter 155 of the Rules of Procedure of SOAH" with
"in accordance with the APA, the Rules of Procedure of SOAH, the Interior
Designers' Registration Law, the Rules and Regulations of the Board, and case
law...".
The new rule ensures that the agency's procedures will be clearly stated
and consistent with governing law.
The agency received no comments pertaining to the adoption of this new
rule.
The new rule is adopted pursuant to §5(b) and §5(d)
of Article 249e Vernon's Texas Civil Statutes, which provide the Texas Board
of Architectural Examiners with authority to promulgate rules and take action
to enforce them.
§5.243.Application and Construction of Procedures.
(a)
SOAH shall conduct formal hearings in accordance with the
APA, the Rules of Procedure of SOAH, the Interior Designers' Registration
Law, the Rules and Regulations of the Board, and case law, provided that:
(1)
an administrative law judge may, by order, modify the requirements
of the Rules of Procedure of SOAH and supplement other procedural requirements
of law to promote the fair and efficient handling of a Contested Case; and
(2)
an administrative law judge may modify the procedural requirements
of the Rules of Procedure of SOAH in appropriate cases to facilitate resolution
of issues if doing so does not prejudice any of a party's rights or contravene
applicable statutes.
(b)
If there is any conflict between the Rules and Regulations
of the Board or a prior decision of the Board and any of the statutory provisions
applicable to a Contested Case, the statute controls.
(c)
Not all contested procedural issues may be susceptible
to resolution by reference to the APA and other applicable statutes, the Rules
of Procedure of SOAH, the Rules and Regulations of the Board, and case law.
When they are not, the presiding administrative law judge shall consider the
Texas Rules of Civil Procedure (TRCP) as interpreted and construed by Texas
case law, and shall consider persuasive authority established in other forums
in order to issue orders and rulings that are just in the circumstances of
the Contested Case.
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 June 17, 2002.
TRD-200203737
Cathy L. Hendricks, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Effective date: July 7, 2002
Proposal publication date: December 28, 2001
For further information, please call: (512) 305-8535
Chapter 101.
DENTAL LICENSURE
22 TAC §101.9
The State Board of Dental Examiners adopts amendments to §101.9,
concerning Dental Profiles without changes to the text published in the April
26, 2002, issue of the
Texas Register
(27
TexReg 3424).
Section 101.9 provides that all applicants for renewals of dental licenses
must include specified data on a form provided by the State Board of Dental
Examiners and must do so by June 1, 2002. The State Board of Dental Examiners
is amending the effective date of this rule to begin on January 1, 2003.
This rule was adopted pursuant to Senate Bill 187 passed during the 78th
Legislative Session. Section 2054.2606 of Senate Bill 187 provided that various
health care licensing entities, inclusive of the State Board of Dental Examiners,
provide specified profile information of its licensees. The purpose of this
legislation was to provide a uniform reporting requirement of health care
licensing entities and make available to the citizens of the State of Texas
specified uniform information to enable citizens accessible acquisition of
information so that the citizens may become more informed in their for health
care decision-making. The State Board of Dental requests amendment of §101.9
to amend the effective date of June 1, 2002, to January 1, 2003, in order
to implement internal measures and systems to accomplish the implementation
process.
The public benefit anticipated as a result of the amended section will
be access by the public to licensees' information which will be uniform.
No comments were received regarding adoption of the proposal.
The amended rule is adopted under Texas Government Code §§2001.021
et seq.; Texas Civil Statutes, the Occupations Code §254.001 which provides
the State Board of Dental Examiners with the authority to adopt and enforce
rules necessary for it to perform its duties, and to ensure compliance with
laws relating to the practice of dentistry, and Senate Bill 187, §11,
77th Legislature, 2001, which requires the Board to adopt rules to establish
a profile system.
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 June 11, 2002.
TRD-200203657
Jeffry R. Hill
Executive Director
State Board of Dental Examiners
Effective date: July 1, 2002
Proposal publication date: April 26, 2002
For further information, please call: (512) 463-6400
Chapter 3.
LANDSCAPE ARCHITECTS
Chapter 5.
INTERIOR DESIGNERS
Part 5.
STATE BOARD OF DENTAL EXAMINERS
Chapter 104.
CONTINUING EDUCATION