22 TAC §89.57
The Texas Cosmetology Commission proposes amendments to §89.57
of the Commission's rules. Section 89.57 requires that, upon the filing of
a complaint with the commission charging a licensee or certificate holder
with violating certain provisions of Chapter 1602 of the Texas Occupations
Code, the commission shall provide all parties with an opportunity for hearing
after reasonable notice of not less than ten days prior to the hearing. The
commission proposes to amend §89.57 to clarify that this rule applies
to any and all charges of alleged violations of any provision of Chapter 1602
of the Texas Occupations Code or a rule adopted pursuant to that chapter.
The commission further proposes to add additional subsections to this rule
which require the respondent in such a proceeding to file an answer informing
the commission of the respondent's desire to either consent to the recommended
penalty or request a contested case hearing. Additionally, the proposed amendments
require that the notice of hearing be delivered by registered or certified
mail as well as regular mail and require the notice to contain certain specific
language informing the respondent of the consequences of a failure to timely
file an answer to the charges filed by the commission. Finally, the proposed
amendments contain provisions allowing for an administrative law judge of
the State Office of Administrative Hearings to enter a default judgment against
the respondent in instances where a timely answer is not filed, and allows
for the commission in such instances to assess against the respondent the
costs associated with preparing for and attending the administrative hearing
in an amount not to exceed two hundred dollars.
Antoinette Humphrey, Executive Director, has determined that for the first
five-year period that the amendments are in effect there will be no additional
fiscal implications for state or local governments as a result of enforcing
or administering the amendments to subsection (a) specifying that this rule
also applies to alleged violations written pursuant to §1602.501 of the
Texas Occupations Code. This specific amendment does not represent a substantive
change of commission policy or practice, but merely clarifies the rule in
order to codify what has been the general understanding of the commission
for years with respect to the reach of the hearing requirements contained
in that rule.
With respect to new subsection (b) requiring the commission to deliver
the Complaint and Notice of Hearing by both regular and certified mail, Ms.
Humphrey has determined that for the first five-year period that the new subsection
is in effect, the additional fiscal implications for state or local governments
as a result of enforcing or administering the subsection will be the additional
costs associated with postage and materials for the notice sent by regular
mail. (The agency already delivers such notices by certified mail.) This cost
is estimated to amount to $20,000.00.
With respect to added subsection (c) and subsection (d) requiring a respondent
to submit an answer in order to secure a contested case hearing, Ms. Humphrey
has determined that for the first five-year period that the new subsections
are in effect, there will be no additional fiscal implications for state or
local governments as a result of enforcing or administering the subsections.
Though the proposed subsections are expected to enable the commission and
its legal representatives to operate more efficiently and prepare more effectively
for contested case hearings, it is not expected that these changes will translate
into a specific fiscal impact on the commission. Rather, such changes will
simply enable the commission to more efficiently utilize the staff and resources
already appropriated to the commission so that the agency can more effectively
execute its responsibilities to regulate and monitor its industry and more
speedily process proposed administrative penalties before the State Office
of Administrative Hearings.
With respect to added subsection (e) allowing the commission to assess
costs against the respondent in instances where a default judgment is issued
due to the respondents failure to timely file an answer to the complaint,
Ms. Humphrey has determined that for the first five-year period that the subsection
is in effect, the additional fiscal implications for state or local governments
as a result of enforcing or administering the subsection will be to enable
the agency to collect an estimated $20,000.00 in additional funds as a result
of such costs being assessed.
Ms. Humphrey, has determined that for each year of the first five years
the amendments will be in effect, the public benefit anticipated as a result
of enforcing the amendments will first be to make clear that service to the
last known address of a licensee as shown in the records of the commission
is sufficient to prove notice of hearing, thus enabling the commission to
efficiently obtain default judgments against respondents where the respondent
has failed to comply with current regulations of the commission which require
licensees to inform the agency of changes to their address. Second, the provisions
in the proposed amendments requiring respondents to file an answer in order
to preserve their opportunity for a contested case hearing will enable the
commission and its legal representatives to operate more efficiently and prepare
more effectively for hearings related to charges of alleged violations of
commission laws and rules. Due to the large numbers of violations issued by
the commission, the agency is required to schedule numerous cases for hearing
on the same day. In the overwhelming majority of such cases, the respondents
never appear to contest the charges against them. By requiring respondents
to file an answer to the notice of hearing expressing their intent to either
consent to the proposed penalty or request a contested case hearing, the agency
and its legal representatives will be better informed of which cases will
require additional preparation, thus enabling them to operate more efficiently
and effectively with state resources. In addition, requiring such answers
by the respondent will reduce the number of instances where a witness wastes
their time and resources traveling to Austin or otherwise remaining available
to testify when no hearing will actually take place due to the non-appearance
of the respondent at the hearing. Finally, the amendments will reduce the
number of instances where the respondent wastes their time and resources to
appear at the hearing to contest the charges, only to have the case reset
to another date in order to give the agency more time to procure a necessary
witness.
The economic cost to persons who are required to comply with the amendment
involves the minimal cost of postage and paper necessary to file an answer
with the commission. In addition, in instances where a default judgment is
granted against a person who fails to comply with the amendment, costs incurred
by the commission for preparing and attending the administrative hearing may
be assessed against that person in an amount not to exceed two hundred dollars.
The amendments will have no impact on small businesses.
Comments may be submitted to Virgil Seals, Texas Cosmetology Commission,
P.O. Box 26700, Austin, Texas 78755-0700, (512) 380-7600. Comments may also
be submitted electronically to virgil.seals@txcc.state.tx.us or faxed to (512)
454-0309.
The amendments to §89.57 are proposed pursuant to §1601.151
of the Texas Occupations Code which authorizes the Commission to adopt rules
consistent with Chapter 1602 in order to implement the provisions of that
chapter. Specifically, pursuant to §1602.504 and §1602.505 of the
Texas Occupations Code, the commission is required to provide those alleged
to have violated the laws or rules of the commission with an opportunity for
a hearing to contest the charges. Pursuant to §1602.407 of the Texas
Occupations Code, the commission is required to provide a hearing when seeking
to suspend or revoke a license. Section 1602.511 also contains provisions
governing proceedings where the commission seeks to impose an administrative
penalty.
There are no other statutes affected by these amendments.
§89.57.Disciplinary Hearings , Notice and Service, Default, Costs .
(a)
Upon the filing of a complaint with the commission
charging an individual licensee or an institutional licensee and/or certificate
holder with any
violation
of the [
actions specified in
]
the Cosmetology Act,
Texas Occupations Code §1602.407 or §1602.501
[
§36
] as grounds for disciplinary action, the Commission
shall provide
an opportunity
for a hearing
on
[
of
] the charges. [
All parties must be afforded an opportunity for
hearing after reasonable notice of not less than ten days prior to the hearing.
]
(b)
Notice. The Complaint and Notice of Hearing
shall be given by regular mail and by registered or certified mail, addressed
to the respondent at his or her most recent address as shown in the records
of the Commission. Service of the Complaint and Notice of Hearing shall be
complete at the time the notice is deposited, postage-paid and properly addressed
in a post office or official depository of the United States Postal Service.
(c)
Answer Required.
(1)
In order to preserve the right to a contested case hearing,
the respondent must file an answer either consenting to the penalty recommended
by the executive director in the complaint, or requesting a contested case
hearing. An answer must be filed not later than 20 days from service of the
complaint.
(2)
The answer described in paragraph (1) of this subsection
may be in any form that references the cause number of the complaint and indicates
the respondent's intent to either consent to the recommended penalty or request
a contested case hearing.
(3)
The notice of hearing provided to a respondent in a contested
case shall include the following language in capital letters in bold face
twelve point type: YOUR FAILURE TO FILE A TIMELY APPEARANCE IN PERSON OR THROUGH
AN ANSWER OR OTHER RESPONSIVE PLEADING TO THE ALLEGATIONS CONTAINED IN THE
COMPLAINT WITHIN TWENTY (20) DAYS OF THE DATE OF THE NOTICE WAS MAILED SHALL
ENTITLE THE TEXAS COSMETOLOGY COMMISSION TO A DEFAULT JUDGEMENT AGAINST YOU.
FAILURE TO APPEAR AT THE HEARING WILL RESULT IN THE ALLEGATIONS AGAINST YOU
BEING ADMITTED AS TRUE AND THE RELIEF REQUESTED MAY BE GRANTED BY DEFAULT.
(d)
Default Hearings.
(1)
If a respondent fails to file a timely answer, the Administrative
Law Judge, upon motion by the Commission, shall issue a Proposal For Decision
against the respondent in which the factual allegations against the respondent
contained in the Complaint and Notice of Hearing shall be admitted as prima
facie evidence, and deemed admitted as true, without any requirements for
additional proof to be submitted by the Commission.
(2)
Any default judgment granted under this section shall be
entered on the basis of the factual allegations contained in the Complaint
and Notice of Hearing, and upon proof of proper notice to the defaulting respondent.
For purposes of this section proper notice means notice sufficient to meet
the provisions of the Government Code §§2001.051, 2001.052, and
2001.054.
(e)
Costs. In administrative hearings brought
before the State Office of Administrative Hearings (SOAH), in the event a
default judgment is granted against the respondent, the Commission has the
authority to assess against the respondent, in addition to the penalty imposed,
the actual cost of the preparing for and attending the administrative hearing
in an amount not to exceed two hundred ($200.00) dollars.
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on January 26, 2004.
TRD-200400503
Frank Knapp
Assistant Attorney General
Texas Cosmetology Commission
Earliest possible date of adoption: March 7, 2004
For further information, please call: (512) 380-7600