22 TAC §519.72
The Texas State Board of Public Accountancy adopts an amendment
to §519.72 concerning Procedures After Hearing without changes to the
proposed text as published in the November 24, 2006, issue of the
Texas Register
(31 TexReg 9567). The text of the rule will not be republished.
The amendment makes it clear that the responsibility of final decisions
and sanctions rests with the Board.
The amendment states that the Board makes final decisions in all disciplinary
matters, including the assessment of sanctions.
Two comments were received regarding adoption of the rule from Marc R.
Core, CPA and President of the Texas Association of Certified Public Accountants.
The first comment suggested that the Board provide that the ruling of the
Administrative Law Judge (ALJ), not the Board, make the final decision. Mr.
Core suggested that the Board making the final determination could be construed
as arbitrarily denying a licensee due process by having the same agency that
brings the action also decide the matter. The committee does not agree with
the comment because the Board members deciding the case are in no way associated
with the prosecution of the case. The separation of the prosecution by the
committee and the staff provide a fair process.
The second comment suggested that a copy of the final decision or order
of the Board shall be delivered or mailed to all parties and, if represented
by counsel, to their attorneys of record. We are in agreement that the respondent
or respondent's attorney should be notified by the Board with sufficient time
to provide an opportunity to file a timely motion for rehearing. The existing
Board rule provides for mailed notices. The Board's practice has been to interpret
those rules to mean that the 20 days to file a motion for rehearing, when
the respondent was not present during the Board's action, does not begin to
run until notice has been mailed. This allows the time Mr. Core is seeking.
Mailing notice of the decision to the respondent, as suggested by Mr. Core,
in addition to respondent's attorney would be an inappropriate communication
by the Board's legal staff. When an individual is represented by legal counsel
the Board's legal staff may only communicate with that person's attorney.
Mailing notice to both respondent and his attorney would violate State Bar
rules.
The amendment is adopted under the Public Accountancy Act ("Act"),
Texas Occupations Code, §901.151 which provides the agency with the authority
to amend, adopt and repeal rules deemed necessary or advisable to effectuate
the Act.
No other article, statute or code is affected by the adoption.
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 26, 2007.
TRD-200700218
J. Randel (Jerry) Hill
General Counsel
Texas State Board of Public Accountancy
Effective date: February 15, 2007
Proposal publication date: November 24, 2006
For further information, please call: (512) 305-7848