Part 19. POLYGRAPH EXAMINERS BOARD
Chapter 391. POLYGRAPH EXAMINER INTERNSHIP
The Polygraph Examiners Board proposes amendments to §391.3, concerning Internship Training Schedule and §391.4, concerning State Examinations for Polygraph Examiners License.
Section 391.3(10) is amended to better clarify the rule.
Section 391.4(1) is amended to allow for a change in testing procedures.
Frank DiTucci, Executive Officer, Polygraph Examiners Board, has determined that for the first five year period the amendments are in effect there will be no fiscal implications to state or local government as a result of enforcing the amendments as proposed.
Mr. DiTucci also has determined that for each year of the first five years the rules are in effect the public benefit anticipated as a result of enforcing the rules will be better than present practices. There will be no effect on small or micro businesses. There will be minimal or no effect to individuals required to comply with the rules as proposed.
Comments on the amendments may be submitted to: Frank DiTucci, Executive Officer, Polygraph Examiners Board, P.O. Box 4087, Austin, Texas 78773-0001. Comments must be submitted prior to August 8, 2007.
The amendments are proposed under the Polygraph Examiners Act, Texas Occupations Code, Chapter 1703, which provides the board with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Polygraph Examiners Act, Texas Occupations Code, Chapter 1703.
No other statute, code or article is affected by the amendments.
§391.3.Internship Training Schedule.
The following internship schedule has been approved and adopted by the Board as a minimum type and number of hours of any internship training program to be utilized in course of supervised instruction:
(1) - (9) (No change.)
(10) Supervised testing and interviewing--minimum of 30 tests conducted in Texas .
(11) - (17) (No change.)
§391.4.State Examinations for Polygraph Examiners License.
State examinations for polygraph examiner license shall conform with the following.
(1) When an intern becomes eligible, as provided by
law, the intern may take the state examination for a polygraph examiners
license under the direct supervision of the Board. The [
intern
can take the academic and scenario portions of the licensing examination
under the Executive Officer's supervision any time after successful
graduation from a Board approved polygraph school. The oral board
portion of the
] licensing examination can only be taken after
the intern has completed five (5) full months of internship under
a sponsoring, licensed examiner. At least Thirty (30) days before
the [
Oral Board
] Licensing Examination an intern must have
submitted all required documents to the Board Office and must have
completed 30 polygraph examinations; otherwise, the intern will not
be able to take [
Oral Board portion of
] the licensing examination
until the next scheduled Board Meeting.
(2) - (8) (No change.)
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 July 2, 2007.
TRD-200702799
Frank DiTucci
Executive Officer
Polygraph Examiners Board
Earliest possible date of adoption: August 12, 2007
For further information, please call: (512) 424-2058
The Polygraph Examiners Board proposes the repeal and replacement of §391.5, concerning Supervision and Internship Review.
Section 391.5 is repealed and replaced because the new rule would better serve the public.
Frank DiTucci, Executive Officer, Polygraph Examiners Board, has determined that for the first five year period the repeal and replacement is in effect there will be no fiscal implications to state or local government as a result of enforcing the rules as proposed.
Mr. DiTucci also has determined that for each year of the first five years the repeal and replacement is in effect the public benefit anticipated as a result of enforcing the rules will be better than present practices. There will be no effect on small or micro businesses. There will be minimal or no effect to individuals required to comply with the rules as proposed.
Comments on the proposal may be submitted to: Frank DiTucci, Executive Officer, Polygraph Examiners Board, P.O. Box 4087, Austin, Texas 78773-0001. Comments must be submitted prior to August 8, 2007.
(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Polygraph Examiners Board or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal is proposed under the Polygraph Examiners Act, Texas Occupations Code, Chapter 1703, which provides the board with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Polygraph Examiners Act, Texas Occupations Code, Chapter 1703.
No other statute, code or article is affected by the repeal.
§391.5.Supervision and Internship Review.
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 July 2, 2007.
TRD-200702800
Frank DiTucci
Executive Director
Polygraph Examiners Board
Earliest possible date of adoption: August 12, 2007
For further information, please call: (512) 424-2058
The new section is proposed under the Polygraph Examiners Act, Texas Occupations Code, Chapter 1703, which provides the board with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Polygraph Examiners Act, Texas Occupations Code, Chapter 1703.
No other statute, code or article is affected by the new rule.
§391.5.Supervision and Internship Review.
(a) The intern sponsor, or a licensed examiner meeting the requirements to be a sponsor is required to be present to supervise while an intern is conducting a polygraph examination or/is required to be available to monitor the intern by audio, at a minimum, while the intern is conducting a polygraph examination without the sponsor, or examiner meeting the requirements to be sponsor, being present to supervise.
(b) The sponsor, or other examiner meeting the requirements to be a sponsor, must be available for real-time communication with the intern (i.e. phone, e-mail, or text-message) at the time the exam is being conducted.
(c) If the intern's polygraph examination is monitored as prescribed by subsection (a) of this section, the sponsor, or licensed examiner meeting the requirements to be a sponsor, shall carefully review each polygraph examination the intern conducts before the intern renders an opinion, either oral or written.
(d) If the intern's polygraph examination is monitored under subsection (b) of this section, the intern is required to transmit the polygraph charts electronically (i.e. fax, e-mail) to the sponsor or examiner meeting the requirements to be a sponsor, who shall in turn carefully review the transmitted chart data before the intern renders an opinion either oral or written.
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 July 2, 2007.
TRD-200702801
Frank DiTucci
Executive Officer
Polygraph Examiners Board
Earliest possible date of adoption: August 12, 2007
For further information, please call: (512) 424-2058
The Polygraph Examiners Board proposes an amendment to §391.8, concerning Applicant With Out-of-State License.
Section 391.8 is amended to allow a change in testing procedures.
Frank DiTucci, Executive Officer, Polygraph Examiners Board, has determined that for the first five year period the amendment is in effect there will be no fiscal implications to state or local government as a result of enforcing the amendment as proposed.
Mr. DiTucci also has determined that for each year of the first five years the rule is in effect the public benefit anticipated as a result of enforcing the rule will be better protection for the public. There will be no effect on small or micro businesses. There are no anticipated economic costs to individuals required to comply with the rule as proposed.
Comments on the amendment may be submitted to: Frank DiTucci, Executive Officer, Polygraph Examiners Board, P.O. Box 4087, Austin, Texas 78773-0001. Comments must be submitted prior to August 8, 2007.
The amendment is proposed under the Polygraph Examiners Act, Texas Occupations Code, Chapter 1703, which provides the board with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Polygraph Examiners Act, Texas Occupations Code, Chapter 1703.
No other statute, code or article is affected by the amendment.
§391.8.Applicant With Out-of-State License.
(a) The Board will require the holder of an out-of-state polygraph license to meet the following requirements:
(1) must be a licensed examiner in good standing (i.e. out-of-state license is not suspended or revoked) at the time of applying for Texas Polygraph license;
(2) must be a licensed polygraph examiner in that state for a minimum of two (2) years;
(3) must have administered fifty (50) polygraph examinations before applying for a Texas license;
(4) must pass Texas licensing exam [
over Texas
Occupations Code, Chapter 1703 (Polygraph Examiners), and over current
Board rules and regulations
];
(5) comply with all existing requirements in Texas Occupations Code, §1703.206 (non-resident Applicant for License).
(b) This rule replaces the need for reciprocity agreements with other states.
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 July 2, 2007.
TRD-200702802
Frank DiTucci
Executive Officer
Polygraph Examiners Board
Earliest possible date of adoption: August 12, 2007
For further information, please call: (512) 424-2058
The Polygraph Examiners Board proposes new §393.9, concerning Bonds and Insurance.
New §393.9 was proposed to better identify those parties authorized to offer for sale bonds or insurance policies in the state of Texas.
Frank DiTucci, Executive Officer, Polygraph Examiners Board, has determined that for the first five year period the new section is in effect there will be no fiscal implications to state or local government as a result of enforcing the new section as proposed.
Mr. DiTucci also has determined that for each year of the first five years the new section is in effect the public benefit anticipated as a result of enforcing the rule will be better than present practices. There will be no effect on small or micro businesses. There are no anticipated economic costs to individuals required to comply with the rule as proposed.
Comments on the new section may be submitted to: Frank DiTucci, Executive Officer, Polygraph Examiners Board, P.O. Box 4087, Austin, Texas 78773-0001. Comments must be submitted prior to August 8, 2007.
The new rule is proposed under the Polygraph Examiners Act, Texas Occupations Code, Chapter 1703, which provides the board with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Polygraph Examiners Act, Texas Occupations Code, Chapter 1703.
No other statute, code or article is affected by the new rule.
§393.9.Bonds and Insurance.
Bonds or Insurance can be written only by those authorized to do so in the State of Texas.
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 July 2, 2007.
TRD-200702803
Frank DiTucci
Executive Officer
Polygraph Examiners Board
Earliest possible date of adoption: August 12, 2007
For further information, please call: (512) 424-2058
The Polygraph Examiners Board proposes the repeal and replacement of §395.14, concerning No Texas Address; new §395.15, concerning Authority to Work in the United States and an amendment to §395.16, concerning Unauthorized Examination.
The repeal and replacement of §395.14 is proposed to better clarify the process of registering a persons license.
New §395.15 this is proposed to better identify person legally entitled to work in Texas.
Section 395.16 is proposed to better identify the examiner.
Frank DiTucci, Executive Officer, Polygraph Examiners Board, has determined that for the first five year period the rules are in effect there will be no fiscal implications to state or local government as a result of enforcing the rules as proposed.
Mr. DiTucci also has determined that for each year of the first five years the rules are in effect the public benefit anticipated as a result of enforcing the rules will be better than present practices. There will be no effect on small or micro businesses. There are no anticipated economic costs to individuals required to comply with the rules as proposed.
Comments on the proposals may be submitted to: Frank DiTucci, Executive Officer, Polygraph Examiners Board, P.O. Box 4087, Austin, Texas 78773-0001. Comments must be submitted prior to August 8, 2007.
(Editor's note: The text of the following section proposed for repeal will not be published. The section may be examined in the offices of the Polygraph Examiners Board or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The repeal is proposed under the Polygraph Examiners Act, Texas Occupations Code, Chapter 1703, which provides the board with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Polygraph Examiners Act, Texas Occupations Code, Chapter 1703.
No other statute, code or article is affected by the repeal.
§395.14.No Texas Address.
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 July 2, 2007.
TRD-200702804
Frank DiTucci
Executive Officer
Polygraph Examiners Board
Earliest possible date of adoption: August 12, 2007
For further information, please call: (512) 424-2058
The amendment and new sections are proposed under the Polygraph Examiners Act, Texas Occupations Code, Chapter 1703, which provides the board with the authority to prescribe, adopt, and enforce rules relating to the administration and enforcement of the provisions of the Polygraph Examiners Act, Texas Occupations Code, Chapter 1703.
No other statute, code or article is affected by the proposals.
§395.14.No Texas Address.
A Texas license holder, who is a U.S. citizen or otherwise legally allowed to work in the U.S., but has no Texas address, shall be required to register his or her Texas license with the Travis County, Texas county clerk.
§395.15.Authority to Work in the United States.
Along with all other requirements a person who is not a U.S. citizen must provide documentation to be able to be and work in the United States.
§395.16.Unauthorized Examination.
An examiner shall not conduct an examination where
the examiner
[
he
] has reason to believe the examination
is intended to circumvent or defy the law.
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 July 2, 2007.
TRD-200702805
Frank DiTucci
Executive Officer
Polygraph Examiners Board
Earliest possible date of adoption: August 12, 2007
For further information, please call: (512) 424-2058
Chapter 573. RULES OF PROFESSIONAL CONDUCT
Subchapter G. OTHER PROVISIONS
The Texas Board of Veterinary Medical Examiners ("Board") proposes amendments to §573.72 concerning Animal Reproduction. The Board, through its rules and policies, interprets many activities to constitute the "practice of veterinary medicine" as the phrase is generally defined in the Veterinary Licensing Act, Occupations Code, §801.002. Section 573.72 currently interprets the practice of veterinary medicine as it applies to animal reproduction, especially the practice of embryo transplantation. The Board is aware that in certain circumstances "breeding soundness examinations" or elements of such examinations may have been done by non-veterinarians. The Board, through the amendments, seeks to clarify that the assessment of an animal's potential for reproduction involves many traditional activities of veterinary medicine, including palpation, examination of blood and semen samples, ultrasonography, and related activities. When breeding soundness is a condition of a sale of an animal, only a veterinarian may issue a certificate of veterinary inspection attesting to the physical condition and/or soundness of an animal. Thus, a breeding soundness examination should be considered within the scope and function of veterinary medicine and must be conducted only by a veterinarian.
Mr. Dewey Helmcamp III, Executive Director, has determined that for the first five-year period the amended section is in effect there will be no fiscal implications for state government as a result of enforcing or administering the section.
Mr. Helmcamp has also determined for the first five years the section is in effect the public benefit anticipated as a result of enforcing the amended section will be to increase compliance with the Veterinary Licensing Act and reduce the incidents of unauthorized practice that could jeopardize the health and well-being of animals. There will be no effect on small or micro businesses. There will be no economic cost to persons required to comply with the amended section as proposed.
Comments on the proposed amendments may be submitted in writing to Loris Jones, Texas Board of Veterinary Medical Examiners, 333 Guadalupe, Suite 3-810, Austin, Texas 78701, phone (512) 306-7555, fax (512) 305-7556, e-mail loris.jones@tbvme.state.tx.us, and will be accepted for 30 days following publication in the Texas Register.
The amendments are proposed under the authority of the Veterinary Licensing Act, Occupations Code, §801.151(a) which states that the Board may adopt rules necessary to administer the chapter.
The amendments affect the Veterinary Licensing Act, Occupations Code, §801.002.
§573.72.Animal Reproduction.
(a)
The Board considers the following
activities the practice of veterinary medicine as defined in the Veterinary
Licensing Act, Occupations Code, §801.002
[
Pursuant
to the Act, section 2(2) and §(11), any of the following activities
constitute the practice of veterinary medicine
]:
(1) surgical invasion of the reproductive tract of
an animal, including laparoscopy and needle entry unless performed
under the direct supervision of a veterinarian; [
or
]
(2) obtaining, possessing or administering prescription
or legend drugs for use in an animal without a valid prescription
from a licensed veterinarian or in a properly labeled container dispensed
by a licensed veterinarian
; and
[
. Nothing in this
rule shall affect those activities exempted from the Act as defined
in Article 8890, §3.
]
(3) a breeding soundness examination, which is defined as the assessment of an animal by a veterinarian to determine the animal's ability or potential for reproduction, and includes, but is not limited to, diagnosis by rectal palpation of reproduction structures, ultrasonography, semen collection and microscopic examination, serum/blood chemistry analysis, cytology, and biopsy of tissue.
(b) The activities described in this section do not affect those activities exempted from coverage of the Veterinary Licensing Act, Occupations Code, §801.004.
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 June 29, 2007.
TRD-200702741
Loris Jones
Executive Assistant
Texas Board of Veterinary Medical Examiners
Proposed date of adoption: October 11, 2007
For further information, please call: (512) 305-7563
The Texas Board of Veterinary Medical Examiners ("Board") proposes amendments to §575.27 concerning Complaints--Receipt, Investigation and Disposition. Basically, the amendments spell out Board procedures in investigating complaints that are currently being followed. For example, one amendment specifies that a licensee must respond to a complaint within 21 days of receipt of the complaint from the Board. Another amendment states that in addition to contacting the complainant during an investigation, the investigator may contact other persons that may be involved in the case, such as second opinion veterinarians. Other changes are for clarification of current procedures. The name of a committee that hears complaints at an informal conference is changed from a "conference committee" to an "enforcement committee," to reflect the Board's common designation of that committee.
Mr. Dewey Helmcamp III, Executive Director, has determined that for the first five-year period the amended section is in effect there will be no fiscal implications for state government as a result of enforcing or administering the section.
Mr. Helmcamp has also determined that for the first five years the section is in effect the public benefit anticipated as a result of enforcing the amended section will be to clarify and better explain the Board's investigatory procedures. There will be no effect on small or micro businesses. There will be no economic cost to persons required to comply with the amended section as proposed.
Comments on the proposed amendments may be submitted in writing to Loris Jones, Texas Board of Veterinary Medical Examiners, 333 Guadalupe, Suite 3-810, Austin, Texas 78701, phone (512) 305-7555, fax (512) 305-7556, e-mail loris.jones@tbvme.state.tx.us, and will be accepted for 30 days following publication in the Texas Register.
The amendments are proposed under the authority of the Veterinary Licensing Act, Occupations Code, §801.151(a) which states that the Board may adopt rules necessary to administer the chapter.
The amendments affect the Veterinary Licensing Act, Occupations Code, §801.408.
§575.27.Complaints--Receipt, Investigation and Disposition.
(a) Complaints against licensees.
(1) All complaints filed by the public against board licensees must be in writing on a complaint form provided by the board and signed by the complainant. If a complaint is transmitted to the board orally or by means other than in writing and the complaint alleges facts showing a continuing or imminent threat to the public welfare, the requirement of a written complaint may be waived until later in the investigative process.
(2) Complaints by the board's enforcement section shall be initiated by the opening of a complaint file.
(3) The board shall maintain a log of complainants to whom the board sends a complaint form.
(4) Anonymous written complaints will not be investigated, but will be logged and filed for information purposes only.
(5) The board shall utilize violation code numbers to distinguish between categories of complaints.
(b) Complaints against non-licensees. Complaints against persons alleged to be practicing veterinary medicine without a license may be investigated and resolved informally by the executive director with the consent of the non-licensee, or the Board may utilize formal cease and desist procedures specified in §801.508, Occupations Code. Complaints not resolved by the executive director may be referred to a local prosecutor or the attorney general for legal action.
(c) Investigation of complaints.
(1) The policy of the board is that the investigation of complaints shall be the primary concern of the board's enforcement program, and shall take precedence over all other elements of the enforcement program, including compliance inspections.
(2) The board shall investigate complaints based on the following allegations, in order of priority:
(A) acts or omissions, including those related to substance abuse, that may constitute a continuing and imminent threat to the public welfare;
(B) acts or omissions of a licensee that resulted in the death of an animal;
(C) acts or omissions of a licensee that contributed to or did not correct the illness, injury or suffering of an animal; and
(D) all other act and omissions that do not fall within categories (A) - (C) of this paragraph.
(3) Upon receipt of a complaint, a letter of acknowledgment will be promptly mailed to the complainant.
(4) Complaints will be reviewed every thirty (30) days to determine the status of the complaint. Parties to a complaint will be informed on the status of a complaint at approximately 45 day intervals.
(5) Upon receipt of a complaint, the director of enforcement will review it and may interview the complainant to develop additional information. If the director of enforcement concludes that the complaint resulted from a misunderstanding, is outside the jurisdiction of the board, or is without merit, the director of enforcement shall recommend through the general counsel to the executive director that the investigation not be initiated. If the executive director concurs with the recommendation, the complainant will be so notified. If the executive director does not concur with the recommendations, the investigation will proceed.
(6) The director of enforcement will assign an investigator
to the complaint, and the investigator will send a request for patient
records to the licensee. Once the investigator receives the patient
records,
the investigator will send a copy of the complaint to
the licensee, along with a request that the licensee respond to the
complaint in writing within 21 days of receipt of the complaint.
[
the licensee will be sent a copy of the complaint and a request for
a written response to the complaint.
]
(7) After the licensee's response to the complaint is received, further investigation may be necessary to corroborate the information provided by the complainant and the licensee. During the investigation, the investigator shall contact the complainant. Other persons, such as second opinion or consulting veterinarians, may be contacted. The investigator may request additional medical opinions, supporting documents, and interviews with other witnesses.
(8) Upon the completion of an investigation, the
investigator
shall prepare a report of investigation (ROI) for review by the director
of enforcement, who in turn shall present the ROI to the executive
director along with
[
director of enforcement shall present
to the executive director a report of investigation (ROI) and
]
a conclusion as to the probability that a violation(s) exists.
(A) If the executive director determines from the ROI that the probability of a violation involving medical judgment or practice exists, the director of enforcement shall forward a copy of the ROI and complaint file to the board secretary and another board member (the "veterinarian members") who will determine whether or not the complaint should be closed, further investigation is warranted, or if the licensee should be invited to respond to the complaint at an informal conference at the board offices.
(B) If the probable violation does not involve medical judgment or practice (example: administrative matters such as continuing education and federal and state controlled substances certificates), the executive director shall forward the complaint file to a committee of the executive director, director of enforcement, the investigator assigned to the complaint, and general counsel (the "staff committee"), which shall determine whether or not the complaint should be dismissed, investigated further, or settled.
(C) If the veterinarian members determine that a violation has not occurred, the executive director or director of enforcement shall notify the complainant and licensee in writing of the conclusion and that the complaint is dismissed.
(D) If the veterinarian members conclude that a probable violation(s) exists, the executive director shall invite the licensee and complainant, in writing , to an informal conference to discuss the complaint made against the licensee. If the veterinarian members cannot agree to dismiss or refer the complaint to an informal conference, the complaint will be automatically referred to an informal conference. The letter invitation to the licensee must include a list of the specific allegations of the complaint.
(E) A complaint considered by the staff committee shall be referred to an informal conference if:
(i) the staff committee determines that the complaint should not be dismissed or settled;
(ii) the staff committee is unable to reach an agreed settlement; or
(iii) the licensee who is the subject of the complaint requests that the complaint be referred to an informal conference.
(d) Informal conferences
(1) The informal conference is the last stage in the investigation of a complaint. The licensee has the right to waive his or her attendance at the conference. The licensee may be represented by counsel.
(2) The board may be represented at the informal conference by
an enforcement
[
a conference
] committee of
the executive director, the veterinarian members and a public member
of the board [
(if the complaint involves medical judgment or
practice)
], the director of enforcement, the investigator assigned
to the complaint, and the board's general counsel. The complainant
and the licensee and the licensee's legal counsel may attend the conference.
Any other attendees are allowed at the discretion of the executive
director. The executive director or the director of enforcement shall
conduct the conference.
(3) Subject to the discretion of the executive director, the following procedure will be followed at the informal conference. The executive director shall explain the purpose of the conference and the rights of the participants, lead the discussion of the allegations of the complaint, and explain the possible courses of action at the conclusion of the conference. The licensee will be asked to respond to the allegations. The complainant will be allowed to make comments relevant to the allegations. Comments of the licensee and complainant must be addressed to the person conducting the conference and not to each other. In the interest of maintaining decorum, the licensee or complainant may be asked to leave the room while the other is talking with the committee. The enforcement committee members may ask questions of the licensee and complainant in order to fully develop the complaint record.
(4) At the conclusion of the informal conference, the
enforcement
[
conference
] committee shall determine
if a violation has occurred. If the
enforcement
[
conference
] committee determines that a violation has not occurred, the
enforcement
[
conference
] committee will dismiss the
complaint, and will advise all parties of the decision and the reasons
why the complaint was dismissed.
(5) If the
enforcement
[
conference
]
committee determines that a violation has occurred and that disciplinary
action is warranted, the executive director will advise the licensee
of the alleged violations and offer the licensee a settlement in the
form of an agreed order that specifies the disciplinary action and
monetary penalty. With the agreement of the licensee, the
enforcement
[
conference
] committee may recommend that the licensee
refund an amount not to exceed the amount the complainant paid to
the licensee instead of or in addition to imposing an administrative
penalty on the licensee. The executive director must inform the licensee
that the licensee has a right to a hearing before an administrative
law judge on the finding of the occurrence of the violation, the type
of disciplinary action, and/or the amount of the recommended penalty.
(6) Within 20 days after the date the licensee receives the settlement offer, the licensee must submit a written response to the board
(A) accepting the settlement offer and recommended disciplinary action, or
(B) requesting a hearing before an administrative law judge.
(7) If the licensee accepts the settlement offer by signing the agreed order, the agreed order will be docketed for board action at the next regularly scheduled board meeting. The board may approve the agreed order as docketed, approve the agreed order with amendments, or reject the agreed order. If the board approves the agreed order with amendments, the executive director shall mail the amended agreed order to the licensee and the licensee shall have fourteen (14) days from receipt to accept the amended agreed order by signing and returning it to the board. If a licensee does not sign an amended agreed order or does not respond within the fourteen (14) days, the complaint will be scheduled for a hearing before an administrative law judge. If the board rejects the agreed order, the complaint may be scheduled for a hearing before an administrative law judge, or the board may direct the executive director to take other appropriate action.
(e) Contested case hearing
(1) If the licensee declines the board's settlement offer, or if the licensee fails to respond timely to the offer, or if the board rejects a proposed agreed order, the investigator of the complaint shall prepare a complaint affidavit containing the allegations against the licensee. The signed and notarized complaint affidavit will then be reviewed by the board's legal counsel and signed by the executive director. The date the executive director signs the complaint affidavit is the official date of filing the complaint affidavit with the board. The complaint affidavit shall serve as the board's pleading in a contested case. At least ten (10) days prior to a scheduled hearing, the complaint affidavit and notice of hearing shall be served on the licensee as set out in subsection (e)(3)(A) of this section.
(2) The executive director shall submit to the State Office of Administrative Hearings (SOAH) a completed Request to Docket Case requesting SOAH to set a hearing and/or assign an administrative law judge to the contested case. The board shall provide notice of the time, date, and place of the hearing to the licensee. Following issuance of a proposal for decision by the administrative law judge, the board by order may find that a violation has occurred and impose disciplinary action, or find that no violation has occurred. The board shall promptly advise the complainant of the board's action.
(3) Notice of SOAH hearing; continuance and default
(A) The board shall send notice of a contested case hearing before SOAH to the licensee's last known address as evidenced by the records of the board. Notice shall be given by first class mail, certified or registered mail, or by personal service.
(B) If the licensee fails to timely enter an appearance or answer the notice of hearing, the board is entitled to a continuance at the time of the hearing. If the licensee fails to appear at the time of the hearing, the board may move either for dismissal of the case from the SOAH docket, or request that the administrative law judge issue a default proposal for decision in favor of the board.
(C) Proof that the licensee has evaded proper notice of the hearing may also be grounds for the board to request dismissal of the case or issuance of a default proposal for decision in favor of the board.
(f) Contingency. The board president shall appoint another licensee board member to assume the duties of the board secretary in the complaint review and informal conference process in the event the board secretary is unable to serve in the capacity set out in this section.
(g) Report to the board of dismissed complaints. The executive director or the director of enforcement shall advise the board at each scheduled meeting of the complaints dismissed since the last meeting. The information will consist of a summary of the allegations, investigation conducted, reasons for dismissal, and file number.
(h) Use of Private Investigators. The executive director may approve the use of private investigators to assist in investigation of complaints where the use of board investigators is not feasible or economical or where private investigators could provide valuable assistance to the board investigators. Private investigators may be utilized in cases involving honesty, integrity and fair dealing; reinstatement applications; solicitation; fraud; dangerous drugs and controlled substances; and practicing veterinary medicine without a license. Private investigators will be utilized in accordance with existing purchasing rules of the Texas Building and Procurement Commission.
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 June 29, 2007.
TRD-200702742
Loris Jones
Executive Assistant
Texas Board of Veterinary Medical Examiners
Proposed date of adoption: October 11, 2007
For further information, please call: (512) 305-7563
Subchapter B. STAFF
The Texas Board of Veterinary Medical Examiners ("Board") proposes amendments to §577.15 concerning Fee Schedule. The amendments increase by $13.00 the Board's required fees for current license renewals, inactive renewals, and special licenses. Proportional increases are also made in delinquent renewal fees. These fee increases are required to cover the costs of the Board's legislative appropriation for FY2008. No changes are made in fees for the State Board Examination and Special License Examination, and the provisional license fee remains at $255.
Mr. Dewey E. Helmcamp III, Executive Director, has determined that for the first five-year period the amended section is in effect there will be fiscal implications for state or local government as a result of enforcing or administering the section. The fee increases will result in a gain to the state's general revenue of $88,595 in FY2008; $90,558 in FY2009; $90,558 in FY2010; $90,558 in FY2011; and $90,558 in FY2012.
Mr. Helmcamp has also determined that for the first five years the amended section is in effect the public benefit anticipated as a result of enforcing the section will be to accurately match the revenues of the agency with expenditures so as not to charge excessive fees for license renewals. There will be no effect on small or micro businesses.
Comments on the proposed amendments may be submitted in writing to Loris Jones, Texas Board of Veterinary Medical Examiners, 333 Guadalupe, Suite 3-810, Austin, Texas 78701, phone (512) 305-7555, fax (512) 305-7556, e-mail loris.jones@tbvme.state.us and will be received for 30 days following publication in the Texas Register.
The amendments are proposed under the authority of the Veterinary Licensing Act, Texas Occupations Code, §801.151(a) which states that the Board may adopt rules necessary to administer the chapter. The amendments affect the Veterinary Licensing Act, Texas Occupations Code, §801.303 which pertains to renewal license fees.
§577.15.Fee Schedule.
The following fees are proposed by the Board:
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 June 29, 2007.
TRD-200702743
Loris Jones
Executive Assistant
Texas Board of Veterinary Medical Examiners
Proposed date of adoption: October 11, 2007
For further information, please call: (512) 305-7563