PART 1. TEXAS BOARD OF ARCHITECTURAL EXAMINERS
SUBCHAPTER C. EXAMINATION
The Texas Board of Architectural Examiners proposes an amendment to §1.43, Reexamination of Chapter 1, Subchapter C, concerning Examination. The amendment allows a candidate for registration to obtain an extension to the 5-year deadline for completing all sections of the examination for registration. A candidate may seek an extension of up to 6 months when the candidate becomes a parent through childbirth or adoption. The amendment also repeals an obsolete "grandfather" provision which allowed for the preservation of pre-existing passing grades when the 5-year deadline was initially adopted.
Cathy L. Hendricks, Executive Director, Texas Board of Architectural Examiners, has determined that for the first five-year period the amended rule is in effect there will be no fiscal impact to state or local governments.
Ms. Hendricks has also determined that for the first five-year period the amended rule is in effect the public benefits expected as a result of the amended rule are as follows: candidates who become parents during the examination period will not be unduly delayed or discouraged from gaining licensure. The rule will have no impact on small business and therefore an alternative impact statement is not required nor was it prepared.
There will not be a change in the cost to persons required to comply with the section.
There will be a positive fiscal impact upon persons required to comply with the section to the extent that they do not forfeit grades and would otherwise be required to undergo the expense of re-examination on sections of the examination.
Comments may be submitted to Cathy L. Hendricks, RID, Executive Director, Texas Board of Architectural Examiners, P.O. Box 12337, Austin, TX 78711-2337.
The amendment is proposed pursuant to §1051.202, Texas Occupations Code, which provide the Texas Board of Architectural Examiners with authority to promulgate rules to implement Chapter 1051, including rules relating to the registration examination.
The proposed amendment does not affect any other statutes.
§1.43.Reexamination.
(a) A [Effective January 1, 2002, a]
Candidate's passing grade for any section of the examination is valid
for five (5) years. Each Candidate [who, after December 31, 2001,
is approved for examination by the Board] must pass all sections
of the examination within five (5) years after the date the Candidate
passes a section of the examination. A Candidate [approved for
examination by the Board after December 31, 2001,] who does
not pass all sections of the examination within five (5) years after
passing a section of the examination will forfeit credit for the section
of the examination passed and must pass that section of the examination again.
(b) The Board may grant one extension to the 5-year
period for completion of the examination if a Candidate is unable
to pass all sections of the examination within that period because
of the adoption or birth of a child within that 5-year period. A Candidate
may request one extension of up to 6 months by filing a written application
with the Board together with any corroborating evidence immediately
after the Candidate learns of the impending adoption or birth. [
Each Candidate approved for examination by the Board prior to January
1, 2002, must pass all sections of the examination no later than December
31, 2006. A Candidate approved for examination by the Board prior
to January 1, 2002, who does not pass all sections of the examination
by December 31, 2006, will forfeit credit for each section of the
examination the candidate passed before January 1, 2002, and must
pass each of those sections again. The Candidate's passing grade for
any section of the examination taken after January 1, 2002, is valid
for five (5) years.]
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 May 11, 2009.
TRD-200901798
Cathy L. Hendricks, RID
Executive Director
Texas Board of Architectural Examiners
Earliest possible date of adoption: June 21, 2009
For further information, please call: (512) 305-8544
The Texas Board of Architectural Examiners proposes amendments to §1.161, Purpose and Scope and §1.162, Computation of Time of Chapter 1, Subchapter I, concerning Disciplinary Action.
The proposed changes to §1.161 will have no substantive or procedural effect upon Board enforcement actions or persons within the jurisdiction of the Texas Board of Architectural Examiners but are intended merely to simplify and modernize existing regulatory language.
The proposed changes to §1.162 will have no substantive or procedural effect upon Board enforcement actions except to create a rebuttable presumption that materials which have been sent by the Board to a person's last known address have been received by that person, or his or her agent, not less than eight (8) days after the materials have been properly deposited into the United States mail, first class postage paid. This presumption allows increased use of first class mail and conforms the agency's practice to that utilized at the State Office of Administrative Hearings which permits the use of first class mail in serving documents. See, 1 TAC §155.103. This change is expected to result in cost savings to the agency without the loss of legal rights to those persons with whom the agency is seeking to communicate. This change is also expected to make correspondence more effective because many times individuals will refuse to sign for a piece of mail which is sent by certified mail and will not retrieve it from the Post Office if delivery was attempted when the person was not present.
Cathy L. Hendricks, Executive Director, Texas Board of Architectural Examiners, has determined that for the first five-year period the amended rules are in effect, there will be no fiscal consequences to state or local governments upon implementation of either rule apart from the cost savings which will result from increased use of "regular" mail.
Ms. Hendricks also has determined that for the first five-year period the amended rules are in effect the public benefits expected as a result of the amended rule are as follows:
The simplification of language as proposed for §1.161 will result in greater comprehension of the rule's text. The proposed change will not have an impact on small businesses and there will be no change in cost to persons required to comply with this rule.
The proposed changes to §1.162 will benefit the public by decreasing agency mailing costs and making receipt of documents more certain than by exclusive reliance upon certified mail. The proposed change will not have an impact on small businesses and there will be no change in cost to persons required to comply with this rule.
Comments may be submitted to Cathy L. Hendricks, RID, Executive Director, Texas Board of Architectural Examiners, P.O. Box 12337, Austin, TX 78711-2337.
The amendments are proposed pursuant to the Architects' Practice Act, Texas Occupations Code Annotated, §§1051.001 - 1051.701 and the specific legislative authority delegated to the Board to adopt rules for the administration and enforcement of Subtitle B of the Texas Occupations Code contained at §1051.202.
The proposed amendments do not affect any other statutes.
§1.161.Purpose and Scope.
This chapter shall provide a system of procedures for the initiation, investigation, prosecution, hearing and resolution of disciplinary matters and allegations involving persons who are subject to the jurisdiction of the Texas Board of Architectural Examiners.
[(a) Unless specifically
indicated in the Rules and Regulations of the Board, this subchapter
governs the procedure followed by the Board in a Contested Case against
an Architect, in the informal disposition of a Contested Case against
an Architect, or in an informal conference with an Architect. Unless
specifically indicated, the Architects' Registration Law, the Administrative
Procedure Act, and the Rules of Practice and Procedure of the State
Office of Administrative Hearings, as appropriate, also govern the
procedure followed by the Board in a Contested Case against an Architect.]
[(b) The Architects' Registration
Law and Sections 1.162, 1.163, 1.164, 1.1167, 1.172, and 1.173 of
this subchapter govern disciplinary action against a person who is
not an Architect. If the person is an Applicant, Section 1.151 of
Subchapter H also governs disciplinary action against him/her.]
§1.162.Computation of Time.
(a) (No change.)
(b) A person shall be presumed to have received
all pleadings and other notices upon a showing that such materials
were sent to the respondent's last known address; the materials were
sent by United States mail, first class postage prepaid; a return
address was affixed to the exterior of the mailing materials and the
materials were not returned; and in excess of seven days has elapsed
from placement of the materials into the United States mail. [
For purposes of this subchapter, an Architect is presumed to have
received a notice from the Board on the fifth day after the date the
Board sent the notice to the Architect's current address of record
via certified mail, return receipt requested.]
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 May 11, 2009.
TRD-200901780
Cathy L. Hendricks, RID
Executive Director
Texas Board of Architectural Examiners
Earliest possible date of adoption: June 21, 2009
For further information, please call: (512) 305-8544
(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 Texas Board of Architectural Examiners or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The Texas Board of Architectural Examiners proposes the repeal of §1.163, Ex Parte Communication of Chapter 1, Subchapter I, concerning Disciplinary Action.
This rule was redundant of prohibitions already found at §2001.061 of the Texas Government Code. This section will be reserved for expansion.
Cathy L. Hendricks, Executive Director, Texas Board of Architectural Examiners, has determined that for the first five-year period after the rule is repealed there will be no fiscal implications to state or local governments.
Ms. Hendricks also has determined that for the first five-year period after the repeal of §1.163 the public benefits expected as a result of the repealed rule will be to minimize regulations which merely restate existing law. The repeal of this rule will not have impact on small business.
There will not be a change in the cost to persons required to comply with the section.
Comments may be submitted to Cathy L. Hendricks, RID, Executive Director, Texas Board of Architectural Examiners, P.O. Box 12337, Austin, TX 78711-2337.
The repeal is proposed under authority of Texas Occupations Code Annotated, §1051.202 which enables the Texas Board of Architectural Examiners to adopt reasonable rules in order to administer or enforce the laws governing the practice of architecture, landscape architecture and interior design.
The proposed repeal does not affect any other statutes.
§1.163.Ex Parte Communication.
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 May 11, 2009.
TRD-200901781
Cathy L. Hendricks, RID
Executive Director
Texas Board of Architectural Examiners
Earliest possible date of adoption: June 21, 2009
For further information, please call: (512) 305-8544
The Texas Board of Architectural Examiners proposes amendments to §1.164, Initiating a Contested Case and §1.165, Informal Disposition of a Contested Case of Chapter 1, Subchapter I, concerning Disciplinary Action.
The proposed changes to §1.164 remove the requirement that a notarized complaint is required in order to commence contested case proceedings and investigations. In order to make the process simpler and more accessible, a member of the public may now file a complaint without the need to have it notarized. The other proposed change would remove language which permits to Board to refuse to disclose certain information. This change brings the Board rule into alignment with the Texas Public Information Act and does not waive any rights to information as permitted by TPIA.
The proposed changes to §1.165 simplify the overall language and would make two modifications to the present rule. Subsection (e) permits the agency to move for entry of a default judgment in those instances when a respondent, after receiving legally required notice of the docketing of a contested case proceeding alleging a violation of any law or rule over which TBAE possesses jurisdiction at the State Office of Administrative Hearings (SOAH), fails to file a written answer or other written response with SOAH. Default is also permitted if a Respondent fails to appear at a scheduled hearing of which he or she has received legally required notice.
It has been the experience of enforcement staff that individuals who, after receiving notice of the commencement of contested case proceedings, choose not to make any written reply do not generally seek or otherwise avail themselves of the due process and evidentiary protections to which they are entitled. Similarly, a person who fails after legally required notice to appear for a contested case hearing has knowingly waived due process rights. Permitting default fault under such circumstances increases efficiency in the prosecution of cases and rendition of a final agency ruling without sacrificing or prejudicing any legal rights to which respondents are entitled.
The proposed changes to §1.165(f) develop and specify those factors which the Board and the Executive Director are to consider in fixing an administrative penalty pursuant to Texas Occupations Code Annotated, §1051.452. However, rather than merely tracking the statutory language, the Board proposes to more exactly detail the relevant factors which it and the Executive Director will evaluate and includes consideration of the public welfare, evaluating any harm resulting from sanctioned conduct (not simply 'economic harm'), taking into account both the specific and general deterrent value of a penalty and whether or not the Respondent has taken prompt remedial action. These changes provide greater notice to those who are subject to the Board's jurisdiction of the criteria which will be used to determine an administrative penalty and serve to prevent the Executive Director or the Board from the unbridled exercise of authority.
Cathy L. Hendricks, Executive Director, Texas Board of Architectural Examiners, has determined that for the first five-year period the amended rules are in effect there will be no fiscal implications to state or local governments.
Ms. Hendricks also has determined that for the first five-year period the amended rules are in effect the public benefits which will be realized are more efficient resolution of contested cases without any loss of due process rights and more certain criteria upon which administrative penalties may be assessed and evaluated. The rules will not have any impact on small businesses and there will be no change in cost to those persons required to comply with the proposed changes.
Comments may be submitted to Cathy L. Hendricks, RID, Executive Director, Texas Board of Architectural Examiners, P.O. Box 12337, Austin, TX 78711-2337.
The amendments are proposed pursuant to Texas Occupations Code Annotated, §1051.202 which authorizes the Board to adopt reasonable rules to administer and enforce Subtitle B of the Architects' Practice Act.
The proposed amendments do not affect any other statutes.
§1.164.Initiating a Contested Case.
(a) The Board may initiate a Contested Case proceeding in response to:
(1) a [notarized] written complaint filed
by a member of the public;
(2) information provided in a registration application or renewal form; or
(3) other information known to the Board which establishes probable cause.
(b) The Board shall not act on a written complaint
filed by a member of the public unless the allegations in the complaint[
, if proven,] describe conduct that violates a rule or statutory
provision enforceable by the Board.
(c) (No change.)
[(d) The Board may refuse
to disclose the identity of a person who furnishes information regarding
an alleged violation of a rule or statutory provision enforceable
by the Board.]
(d) [(e)] The Board shall not
act on a written complaint filed by a member of the public if the
complaint is filed later than ten (10) years after the date of the
act(s) or omission(s) described in the complaint.
§1.165.Informal Disposition of a Contested Case.
(a) A Contested Case may be resolved informally at
any time [after the Contested Case is initiated by the Board].
(b) If the respondent agrees in writing to a settlement
agreement [arising out of the proposed informal disposition of
a Contested Case] and the Executive Director executes the written
settlement agreement, the settlement agreement shall be presented
to the Board for approval or rejection. The settlement agreement must
include written findings of fact and conclusions of law and may be
in the form of a consent order, letter of reprimand, or other format
approved by the Executive Director.
(c) - (d) (No change.)
(e) An informal disposition may be made of a Contested Case by default.
Default occurs whenever a respondent neither
answers nor makes other written response to the filing of a Complaint
or Petition at the State Office of Administrative Hearings alleging
a violation of any law or Rule over which TBAE possesses jurisdiction.
Default also occurs if the respondent fails to appear at a scheduled
and properly noticed hearing to be conducted by the State Office of
Administrative Hearings. [Default shall occur when a respondent
neither responds in writing nor appears at a scheduled hearing related
to a disciplinary matter.]
(f) The Board and the Executive Director shall take into account the following factors when considering a proposed settlement agreement:
[(1) the seriousness of
the conduct that is the source of the allegation(s) against the respondent,
including consideration of:]
(1) [(A)] the nature, circumstances,
extent, and gravity of any relevant act or omission; [, and
]
(2) [(B)] the hazard or potential
hazard to the health, safety or welfare [health or
safety] of the public;
(3) [(2)] the economic harm
resulting from the conduct [damage to property caused by
the conduct];
(4) [(3)] the respondent's history
concerning any previous ground for sanction;
(5) [(4)] the severity of penalty
necessary to effectuate specific and general deterrence [
deter a future ground for sanction];
(6) [(5)] any effort by
the respondent to take prompt remedial action [to correct
the ground for sanction];
(7) [(6)] the economic benefit
gained by the respondent as a result of the conduct; [
and]
(8) [(7)] any other matter justice may require; and
(9) [(8)] When considering a
referral from the Texas Department of Licensing and Regulation, in
addition to the factors described in this subsection, the Board shall
consider the actual number of days that the submission was late.
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 May 11, 2009.
TRD-200901782
Cathy L. Hendricks, RID
Executive Director
Texas Board of Architectural Examiners
Earliest possible date of adoption: June 21, 2009
For further information, please call: (512) 305-8544
The Texas Board of Architectural Examiners proposes amendments to §1.167, Publication of Disciplinary Action of Chapter 1, Subchapter I, concerning Disciplinary Action.
The amendment being proposed to §1.167 is in order to obtain greater clarification concerning the Board's directive that persons who have "received" disciplinary action will have their names published. While this has been the Board's practice it was felt that present language, which requires persons who are "the subject" of disciplinary proceedings to have their names publicized, is overly broad.
Cathy L. Hendricks, Executive Director, Texas Board of Architectural Examiners, has determined that for the first five-year period the amended rule is in effect there will be no fiscal implications to state or local governments.
Ms. Hendricks also has determined that for the first five-year period the amended rule is in effect the public benefit will result from a clearer understanding of the rule. The rule will not have any impact on small businesses and there will be no change in cost to those persons required to comply with the proposed changes.
Comments may be submitted to Cathy L. Hendricks, RID, Executive Director, Texas Board of Architectural Examiners, P.O. Box 12337, Austin, TX 78711-2337.
The amendments are proposed pursuant to Texas Occupations Code Annotated, §1051.202 which authorizes the Board to adopt reasonable rules to administer and enforce Subtitle B of the Architects' Practice Act including the practice of architecture, landscape architecture and interior design.
The proposed amendments do not affect any other statutes.
§1.167.Publication of Disciplinary Action.
(a) The Board shall cause to be published in the Board's
official newsletter, on the Board's Web site, in a newspaper, or in
another publication the name of any person who has received [
is the subject of
] disciplinary action by the Board. The publication
may include a narrative summary of the facts giving rise to disciplinary
action and a description of the action taken.
(b) (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 May 11, 2009.
TRD-200901783
Cathy L. Hendricks, RID
Executive Director
Texas Board of Architectural Examiners
Earliest possible date of adoption: June 21, 2009
For further information, please call: (512) 305-8544
The Texas Board of Architectural Examiners proposes amendments to §1.170, Referrals from the Texas Department of Licensing and Regulation; §1.171, Responding to Request for Information; §1.172, Continuing Violation; §1.173, Violation By One Not an Architect; §1.174, Complaint Process, and §1.175, Evaluation of Evidence by Expert of Chapter 1, Subchapter I, concerning Disciplinary Action.
Section 1.170 requires Architects to submit certain plans and specifications to the Texas Department of Licensing and Regulation for accessibility review not later than the fifth day after issuance. Architectural Barriers Act, Texas Government Code Annotated §469.101. If an architect fails to do so, the TDLR reports the legal violation to the Texas Board of Architectural Examiners. Id., §469.101. The Texas Board of Architectural Examiners will, upon confirmation of a violation, take appropriate disciplinary action in order to further the policy of this state which is to eliminate, to the extent possible, unnecessary barriers encountered by persons with disabilities whose ability to achieve maximum personal independence is needlessly restricted. Texas Occupations Code Annotated §1051.702(2) (West 2005 & Supp. 2008).
The Board proposes minor changes to §1.170 which result in greater certainty regarding the enforcement action which will be taken by directing the Executive Director to issue a written warning upon a first violation and requiring the imposition of an administrative penalty for all subsequent violations.
Section 1.171 requires certain persons to respond to a request for information from the Board. It is the mission of the Texas board of Architectural examiners to ensure a safe built environment for Texas. In order to effectively and efficiently investigate and prosecute instances of statutory or regulatory violation it is essential that the Board be able to acquire information expeditiously; the use of investigatory letters as permitted by §1.171 has proven effective in these efforts.
The Board proposes to expand the class of persons who are responsible for responding to letters of inquiry to include candidates and applicants as well as registrants. These persons are often in a position to provide vital information concerning matters within the Board's jurisdictions and relevant to enforcement proceedings. The proposed change will, if adopted, permit agency staff to request that a registrant, candidate or applicant provide records and documents in response to a request.
The proposed changes permit a failure to respond to be treated as a distinct disciplinary infraction from the underlying matter being investigated, and, in order to stress the importance of a candidate's, applicant's or registrant's cooperation with a Board inquiry, state that a failure to respond within 30 days may constitute grounds for the Board to impose suspension or revocation of a registration.
Section 1.172 will be amended to include a new subsection (b) which expressly classifies each sheet of plans and each separate section of specifications which are prepared, modified or issued in violation of applicable statutory and regulatory requirements to constitute discreet and independent legal violations each of which provides a basis for the imposition of an administrative penalty. The Texas Board of Architectural Examiners proposes this addition in recognition of the fact that plans and specifications which are issued in violation of law present an unacceptable risk of significant bodily harm and economic injury to the citizens of Texas. It is anticipated that registrants and nonregistrants will be deterred from issuing plans and specifications in violation of the law.
The amendment to §1.173 bring the rule into conformity with Subtitle B of the Texas Occupations Code as well as the Administrative Procedure Act (Title 10, Texas Government Code) by deleting references to Section 11 of the Architects' Registration Law (Art. 294a, Vernon's Texas Civil Statutes). The rule implements the practice of the Texas Board of Architectural Examiners to refer all contested case hearings to the State Office of Administrative Hearings (SOAH) for issuance of a proposal for decision regardless of whether the case involves a registrant or a nonregistrant. Because the Board no longer conducts contested case hearings, subsection (d)(3), (4) and (5) of the original rule are no longer necessary. In place of procedural rules governing a contested case hearing the proposed rules would set forth the procedural sets to be taken by the Executive Director once an investigation determined that a nonregistrant has engaged in a legal violation including methods of settlement and notification of rights to a hearing at SOAH. The proposed amendment will make it clear that a recommended settlement or other informal disposition presented to the Board by the Executive Director may, but need not be, approved by the Board. This is consistent with well established law that only a Board may act on behalf of the agency in such instances.
The proposed amendment to §1.174 permits the agency to provide a copy of its policies and procedures to a complainant and/or a respondent by providing information which will allow review of the policies on the internet or, if requested by a party, by mailing a copy of the policies and procedures upon request. The changes to §1.174 also establish "probable cause" as the investigatory standard required to proceed with investigation and settlement/prosecution of a disciplinary matter. This standard has a clear legal definition and is readily applicable to agency investigations. This does not, however, diminish the agency's responsibility to prove a case by the customary "preponderance of the evidence" standard when prosecuting cases through contested case proceedings before the State Office of Administrative Hearings. The final substantive change proposed for §1.174 authorizes, but does not require, the Executive Director to respond to a request for reconsideration if a complaint is dismissed because of lack of probable cause to continue the investigation and refer a matter for prosecution.
Section 1.175 requires that any case involving professional competency or honesty be evaluated by an architect to ensure that professional standards applicable to the profession be objectively reviewed by a peer prior to the docketing of a case at the State Office of Administrative Hearings. The proposed amendment expands this to include 'candidate' along with registrants or applicants as persons whose conduct may be subject to peer review and strikes as unnecessary the entirety of subsection (c). The Board believes that while the qualifications of an expert are very important to valid and reliable case evaluation there is no need to establish the thresholds and automatic disqualifications which presently exist.
Cathy L. Hendricks, Executive Director, Texas Board of Architectural Examiners, has determined that for the first five-year period the amended rules are in effect, there will be no fiscal implications to state or local governments.
Ms. Hendricks also has determined that for the first five-year period the amended rules are in effect the public benefits expected as a result of the amended rules are to cause greater compliance by those within the jurisdiction of the agency and to increase efficiencies in acquiring information necessary for thorough investigation and prosecution of enforcement matters. The rules will not have an impact on small businesses.
There will not be a change in the cost to persons required to comply with the sections.
Comments may be submitted to Cathy L. Hendricks, RID, Executive Director, Texas Board of Architectural Examiners, P.O. Box 12337, Austin, TX 78711-2337.
The amendments are proposed pursuant to the Architects' Practice Act, Texas Occupations Code Annotated, §1051.202 which authorizes the Board to adopt reasonable rules as necessary to administer and enforce the Architects' Practice Act.
The proposed amendments do not affect any other statutes.
§1.170.Referrals from the Texas Department of Licensing and Regulation.
(a) If an Architect fails to submit any document to the Texas Department of Licensing and Regulation as required by the Architectural Barriers Act, or a rule or procedure enacted pursuant to the Architectural Barriers Act, the Board may take disciplinary action against the Architect.
(b) An Architect's failure to submit documents
to the Texas Department of Licensing and Regulation as required by
subsection (a) of this section, shall result in a written warning
from the Executive Director. An administrative penalty shall be imposed
upon second and subsequent failures. [If an Architect submits
a document described by subsection (a) of this section no more than
fifteen (15) days following the deadline for submission of the document,
the Executive Director may issue an informal reprimand to the Architect.
It shall not be necessary for the informal reprimand to be presented
to or approved by the Board.]
(c) When considering potential disciplinary action,
including imposition of an administrative penalty [pursuant
to subsection (a) of this section], the Board and the Executive
Director shall take into account the number of previous incidents
involving a registrant's failure to timely submit documents to the
Texas Department of Licensing and Regulation and the length of the
delay in making the present submission. [the factors listed
in Subsection 1.165(f) of this subchapter.]
§1.171.Responding to Request for Information.
An Architect, a Candidate or an Applicant shall
answer an inquiry or produce requested documents to the Board concerning
any matter under the jurisdiction of the Board within thirty (30)
days after the date the person [Architect] receives
[notice of] the inquiry. Failure [
An Architect's failure] to respond within thirty (30) days
may [to
an inquiry concerning any matter under the jurisdiction of the Board
shall] constitute a separate violation subject to disciplinary
action by the Board up to and including suspension or revocation
of a registration.
§1.172.Continuing Violation.
(a) Each day a violation of any statutory provision or rule enforced by the Board occurs or continues may be considered a separate violation subject to disciplinary action by the Board.
(b) Each sheet of architectural plans and each separate section of the specifications which are prepared, modified or issued in violation of these rules or any laws over which the Board has jurisdiction shall each be considered an independent violation of applicable rules and laws.
§1.173.Violation By One Not an Architect.
(a) A person who is not an Architect who violates any
of the laws or rules over which the Board has jurisdiction is [
title or practice restrictions of the Architects' Registration Law
may be] subject to any or all of the following:
(1) judicial proceedings for injunctive relief; [
injunctive action;]
(2) criminal prosecution in a court of appropriate jurisdiction; [
and/or]
(3) imposition of an administrative penalty; [.
(4) issuance of a cease and desist order from the board.
(b) In taking action against a person who is not an Architect, the Board may be represented by agency staff, the Texas Attorney General, by a county or district attorney, or by other counsel as necessary.
(c) The Executive Director may recommend and the Board
may, after notice and an opportunity for hearing, impose
an administrative penalty in the manner prescribed in Subchapter
I of the Architects' Practice Act and otherwise as permitted by law
and Board rules [Section 11 of the Architects' Registration
Law].
(d) A person charged with a violation may request a hearing to contest a proposed administrative penalty that has been recommended by the Executive Director:
(1) A request for a hearing must be received in the Board's office no later than the 20th day after the date the person receives notice that the Executive Director has recommended the imposition of an administrative penalty.
(2) The hearing shall be conducted by an Administrative
Law Judge at the State Office of Administrative Hearings under provision
of the Administrative Procedure Act, Texas Government Code Annotated,
Chapter 2001, and this subchapter. [The Board shall preside
over a hearing held pursuant to this section. The Board shall send
notice of the date, time, and location of the hearing to the person
charged with a violation. During the hearing, the Board's staff and
the person charged with a violation or the person's authorized representative
shall have the opportunity to present testimony and other evidence
and make legal arguments regarding the alleged violation and the amount
of the proposed administrative penalty.]
[(3) During a hearing on
a proposed administrative penalty, the Board shall have the authority
and duty to:]
[(A) conduct a full, fair, and impartial hearing;]
[(B) take action to avoid unnecessary delay in the disposition of the proceeding;]
[(C) maintain order; and]
[(D) regulate the conduct of the parties and their authorized representatives, including the authority and duty to limit irrelevant, immaterial, and unduly repetitious testimony and reasonably limit the time for presentations.]
[(4) After a hearing on
a proposed administrative penalty, the Board's chair shall issue a
written order stating the Board's findings regarding the occurrence
of a ground for sanction and the amount of the penalty, if any. In
determining the amount of the penalty, if any, the Board shall consider
the factors listed in Subsection 11(j) of the Architects' Registration
Law.]
[(5) The Board may stop
a hearing on a proposed administrative penalty in order to consult
privately with legal counsel regarding any matter related to the hearing.]
(e) If a person charged with a violation agrees to
a proposed administrative penalty recommended by the Executive Director,
the Board may [shall] approve the Executive
Director's recommendation and order payment of the proposed penalty
without a hearing.
(f) Within thirty (30) days after the date on which
the Board's order imposing an administrative penalty or taking
other final agency action in a contested case proceeding becomes
final, the person charged must pay the administrative penalty and
otherwise ensure compliance with the terms set forth in the Board's
Final Order [in full] or file a petition for judicial
review with a district court in Travis County as provided by Subchapter
G, Chapter 2001, Government Code.
(g) If the Executive Director determines that a Nonregistrant is violating, or has violated, a statutory provision or rule enforced by the Board, the Executive Director may:
(1) issue to the Nonregistrant a written notice describing
the alleged violation and the Executive Director's intention [
intent] to request that the Board impose administrative
penalties and issue a cease and desist order. The written
notice shall offer the Nonregistrant an opportunity to resolve all
matters contained in the written notice by means of an agreed order
or other instrument deemed appropriate by the Executive Director and
of the Nonregistrant's ability to request an informal conference as
well as of his or her right to request a hearing before an Administrative
Law Judge at the State Office of Administrative Hearings; and
[offering an opportunity for a hearing regarding the alleged
violation pursuant to Section 1051.504 of the Texas Occupations Code;
]
[(2) request that the Board,
after providing an opportunity for a hearing as described in subsection
(g)(1) of this section, issue a cease and desist order to the Nonregistrant
prohibiting the Nonregistrant's misconduct; and]
(2) [(3)] take any other action
and impose any other penalty described in this section or permitted
[provided] by [other] law.
§1.174.Complaint Process.
(a) - (b) (No change.)
(c) Once a complaint has been received, the Board's enforcement staff shall:
[(1) provide the complainant
and respondent with copies of the Board's policies and procedures
regarding complaint investigation and resolution;]
(1) [(2)] conduct a preliminary
evaluation of the complaint within thirty (30) days to determine:
(A) Jurisdiction: whether the complaint provides information sufficient to establish probable cause for the Board's staff to believe an actionable violation might have occurred;
(B) Disciplinary History: whether there has been previous enforcement activity involving the person against whom the complaint has been filed; and
(C) Priority Level: the seriousness of the complaint relative to other pending enforcement matters;
(2) provide the complainant and respondent with information which will permit review of the Board's policies and procedures from the Board's web site regarding complaint investigation and resolution. If the complainant or respondent requests a copy of the policies and procedures in written format a copy shall be mailed upon request.
(3) notify the complainant and respondent of the status of the investigation at least quarterly unless providing notice would jeopardize an investigation; and
(4) maintain a complaint file that includes at least:
(A) the name of the person who filed the complaint unless the complaint was filed anonymously;
(B) the date the complaint was received by the Board's staff;
(C) a description of the subject matter of the complaint;
(D) the name of each person contacted in relation to the complaint;
(E) a summary of the results of the review and investigation of the complaint; and
(F) an explanation for the reason the complaint was dismissed if the complaint was dismissed without action other than the investigation of the complaint.
(d) - (e) (No change.)
(f) If the Board's staff proceeds with an investigation, the staff shall:
(1) investigate the complaint according to the priority level assigned to the complaint;
(2) notify the complainant and respondent that, as a result of the staff's preliminary evaluation of the complaint, the staff has determined that the Board has jurisdiction over the allegations(s) described in the complaint and has decided to proceed with an investigation of the allegation(s) against the respondent; and
(3) gather sufficient information and evidence to determine whether there is probable cause to believe that a violation of a statutory provision or rule enforced by the Board has occurred.
(g) (No change.)
(h) If the information and evidence gathered during
an investigation are insufficient to establish probable cause
to believe [prove] that a violation has occurred,
the Board's staff shall:
(1) dismiss the complaint;
(2) send notices to the complainant and respondent regarding the dismissal;
(3) if warranted, include in the respondent's notice a recommendation or warning regarding the respondent's future conduct; and
(4) if a complaint is determined to be unfounded, state in the respondent's notice that no violation was found.
(i) If the information and evidence gathered during
an investigation are sufficient to establish probable cause to
believe [prove] that a violation has occurred, the
Board's staff shall:
(1) seek to resolve the matter pursuant to §§1.165, 1.166
[section 1.165] or [section] 1.173
of this subchapter; or
(2) issue a warning to the respondent if the violation is the respondent's first violation and:
(A) the respondent has not received a written warning
or advisory notice from the Board [regarding the law's restrictions
which was directed to the respondent];
(B) the respondent provided a satisfactory remedy which has [
that alleviated or] eliminated any harm or threat
to the health or safety of the public; and
(C) the guidelines for determining an appropriate penalty for the violation recommend an administrative penalty or a reprimand as an appropriate sanction for the violation.
(j) (No change.)
(k) If a complaint is dismissed, the complainant may submit to the Executive Director a written request for reconsideration. The written request must explain why the complaint should not have been dismissed. The Executive Director may, but is not required to, respond to the request for reconsideration.
§1.175.Evaluation of Evidence by Expert.
(a) If the Board's staff determines that a respondent
who is a Registrant, Candidate, or Applicant appears to
have engaged in the Practice of Architecture [acted]
in a manner that was Reckless, Grossly [reckless, grossly
] incompetent, or dishonest, the matter may not be docketed
at [presented to the Board or referred to] the State
Office of Administrative Hearings for a formal hearing unless the
evidence and information gathered during the investigation have been
reviewed by a member of the Board or the Board's staff or a consultant
who is registered as an Architect.
(b) The purpose of the review [described in subsection
(a) of this section] shall be to confirm, prior to the commencement
of formal disciplinary proceedings, that the respondent's professional
conduct did not satisfy the requisite standard of care which
should be applied by a reasonably prudent Architect under similar
circumstances.
[(c) In order to act as
a consultant for the purposes of subsection (a) of this section, a
person must:]
[(1) have been actively registered as an Architect for at least five (5) years;]
[(2) have significant experience in the area(s) relevant to the issue(s) to be considered by the consultant; and]
[(3) not have been the subject of disciplinary action by the Board at any time.]
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 May 11, 2009.
TRD-200901784
Cathy L. Hendricks, RID
Executive Director
Texas Board of Architectural Examiners
Earliest possible date of adoption: June 21, 2009
For further information, please call: (512) 305-8544
The Texas Board of Architectural Examiners proposes amendments to §1.177, Administrative Penalty Schedule and §1.178, Reinstatement Following Suspension or Revocation of Chapter 1, Subchapter I, concerning Disciplinary Action.
The Texas Board of Architectural Examiners ("Board") is responsible for enforcing the Architects' Practice Act, Texas Occupations Code Annotated §§1051.001 - 1051.701 (West 2004 & Supp. 2008). Upon a finding that disciplinary action is warranted the Board is permitted by statute to impose administrative penalties as well as suspend or revoke the certificate of registration of a registered architect. Id., §1051.451, §1051.751. In conjunction with this authority the Board is required by statute to adopt an administrative penalty schedule and may reinstate a certificate of registration which has been suspended or revoked. Id., §1051.403, §1051.452(c).
The Board proposes changers to the present administrative penalty schedule for violations of the Architects' Practice Act as set forth in §1.177 and to amend §1.178. The proposed changes to §1.178 will implement statutory language which permits the board to assess "all fees and costs incurred by the Board as the result of any proceeding that led to the denial, revocation or suspension [of the certificate of registration]." Texas Occupations Code Annotated §1051.403(1) (West 2004 & Supp. 2008).
The newly stated purpose of the penalty schedule found in §1.177 is to "guide the Board's assessment of an appropriate administrative penalty." The Texas Board of Architectural Examiners recognizes that uniformity in the application of a penalty schedule is necessary to ensure that similarly situated individuals are treated in a consistent manner and to thereby avoid even the appearance of unbridled agency discretion.
Equally important, however, is the Board's recognition that each case must be evaluated based upon the unique facts and the underlying equities of any given situation. In order to treat similarly situated individuals in a consistent manner the proposed rule incorporates concrete criteria and finite ranges of penalty in conjunction with a recognition that the regulatory criteria are to "guide the Board's assessment" rather than compel the imposition of a specific administrative penalty.
The administrative penalty schedule presently classifies violation(s) as "minor", "moderate" or "major." The proposed amendments would continue this classification system, add clarifying language and allow consideration of relevant factors which are not expressly set forth in the rule as it now exists but which the Board feels to be significant for determining an appropriate administrative penalty for each of the three classifications. Making these criteria express will give notice of those factors upon which the Board will place primary reliance.
The proposed amendments will increase the penalties which the Board may impose within each of the three classifications and expand the type of legally recognized harm which the Board may consider beyond simply "economic damage to property" to include the broader concept of "monetary loss to the project owner or other involved persons and entities" as well as other "economic injury."
The resulting administrative penalty associated with each of the three classifications has been increased. A minor violation may result in an administrative penalty of not more than $500.00. Previously the amount was $350.00. A moderate violation may result in an administrative penalty of not more than $2,000.00. Previously a moderate violation was subject to a penalty of between $351.00 and $1,200.00. A major violation may not exceed $5,000.00. Many of the criteria, as well as the maximum administrative penalty amount of $5,000.00, reflect statutory language contained at Texas Occupations Code Annotated §§1051.451 - 1051.452. These changes reflect enforcement experience encountered by the agency and the need to consider unique circumstances of each case while also serving as a general and specific deterrent to violations. Enforcement history has shown that effective deterrent is as essential to the Board's mission of ensuring a safe built environment as is aggressive investigation and prosecution of legal violations.
The proposed rules would, for three defined types of statutory violations, implement specific penalty ranges for the violations. The Board has determined that these violations present significant risk of injury and are so fundamental to the practice of architecture that they should presumptively be classified as 'major' violations.
The first violation involves the situation in which construction documents for nonexempt work are prepared and/or issued by persons who are not architects.
The second specific violation addressed by the proposed rules changes involves the signing and sealing of construction documents by an architect who is under a duty to exercise supervision and control over the work of a nonregistrant. "Supervision and Control" is defined in 22 TAC §1.5(65). The Board will evaluate evidence, including correspondence, to ensure that the supervision and control exercised by a registrant over the work of a nonregistrant is active, affirmative and superior rather than passive and subservient during the entire design process.
The third violation which will be presumed to be a 'major' violation for calculation of an administrative penalty results from failure to respond to a Board inquiry made under authority of 22 TAC §1.171.
The Board has determined that the health, safety and welfare of citizens is always put at an unacceptable risk of harm when persons who lack the education, training and experience of registered architects engage in the practice of architecture and it therefore possesses a compelling interest in deterring and sanctioning the unauthorized practice of architecture. This interest is furthered by a presumption that unauthorized practice is always a 'major' violation.
The Board has, within the proposed rule change, made it clear that each individual document and separately numbered section of the architectural specifications prepared by a nonregistrant will be treated as a separate violation. As an example, an unregistered person who prepares and issues five (5) sheets of architectural plans in violation of the Architects' Practice Act will be considered to have engaged in five (5) separate legal violations each of which may be classified as a "major" administrative penalty, i.e., warranting a penalty up to $5,000.00 or, under these facts, $25,000 in the aggregate.
It is the expectation of the Board that significant deterrent value will be recognized from the combined effect of the proposed changes to §1.177 and that acquisition of information in response to Board inquiry made under authority of §1.177 will become more efficient and effective for the prompt investigation of cases.
The Board has also determined that the failure of a registrant to actively and affirmatively exercise "supervision and control" over the work of a nonregistrant when such a duty exists likewise presents unacceptable risks of harm and, for the same policy reasons as detailed above, has classified such a failure as a "major" violation. Similarly, each sheet of architectural plans and separately numbered section of the specifications will be deemed separate violations.
The efficient investigative functions of the Board requires that accurate information be provided when sought under authority of 22 TAC §1.171. The proposed rule change would place a failure to timely respond within the administrative penalty schedule as a "moderate" violation if the response is received within 60 days of receipt of the inquiry or, to put it differently, if the response is no more than 30 days late. However, any delay beyond 30 days is considered a "major" violation with each 15 day period constituting a separate penalty.
The proposed changes to the administrative penalty schedule would add content which strengthens the enforcement mechanisms available to TBAE and gives more precise notice to stakeholders and other interested parties of which criteria will be evaluated in order to (a) classify a violation as "minor", "moderate" or "major" and (b) the consequences of such classification.
The Board believes that there will be substantial deterrent effect resulting from adoption of the proposed changes to §1.177 attributable to increased compliance by those under the agency's jurisdiction.
The Board also proposes to change §1.178 which addresses the reinstatement of a registrant after his or her certificate of registration has been suspended or revoked. The proposed change is based upon the statutory language found in Texas Occupations Code Annotated §1051.403(1) (West 2004 & Supp. 2008) (Board may assess "all fees and costs incurred by the Board as the result of any proceeding that led to the denial, revocation or suspension [of the certificate of registration].") The proposed change makes clear that the Board, as a condition of issuance or reissuance of a certificate of registration, may require that attorney's fees and other costs directly associated with a prior contested case proceeding resulting in "the denial, revocation or suspension" of a registration be paid to the agency.
Those who seek to have their certificates of registration reinstated will be now be aware that the privilege of reinstatement will require, among other things reimbursement to the agency. This is not a rule which seeks to impose attorney's fees and related costs by the prevailing party but, rather, a condition precedent to the reinstatement of a certificate of registration which was suspended or revoked through contested case proceedings.
Cathy L. Hendricks, Executive Director, Texas Board of Architectural Examiners, has determined that for the first five-year period the amended rules are in effect, there will be no fiscal implications. While penalties may be increased to serve the desired deterrent purposes the number of violations will decrease. There is no anticipated fiscal impact to state or local governments.
Ms. Hendricks also has determined that for the first five-year period the amended rules are in effect the public benefits expected as a result of the amended rule are to cause greater compliance by those within the jurisdiction of the agency and to increase efficiencies in acquiring information necessary for thorough investigation and prosecution of enforcement matters. The rules will not have an impact on small businesses.
There will not be a change in the cost to persons required to comply with the sections except that those individuals who have had their certificates of registration revoked or suspended by previous contested case proceedings will be required to pay the fees and costs arising out of those proceedings.
Comments may be submitted to Cathy L. Hendricks, RID, Executive Director, Texas Board of Architectural Examiners, P.O. Box 12337, Austin, TX 78711-2337.
The amendments are proposed pursuant to the Architects' Practice Act, Texas Occupations Code Annotated §§1051.001 - 1051.701.
The proposed amendments do not affect any other statutes.
§1.177.Administrative Penalty Schedule.
If the Board determines that an administrative penalty is the
appropriate sanction for a violation of any of the statutory provisions
or rules enforced by the Board, the following guidelines shall be
applied to guide the Board's assessment of an appropriate [
determine the amount of the] administrative penalty:
(1) The Board shall consider the following factors to determine whether the violation is minor, moderate, or major:
(A) Seriousness of misconduct and efforts to correct the ground for sanction:
(i) Minor--the respondent has demonstrated that he/she was unaware that his/her conduct was prohibited and unaware that the conduct was reasonably likely to cause the harm that resulted from the conduct or the respondent has demonstrated that there were significant extenuating circumstances or intervening causes for the violation; and the respondent has demonstrated that he/she provided a satisfactory remedy that alleviated or eliminated any harm or threat to the health or safety of the public.
(ii) Moderate--the violation shows that the respondent knowingly disregarded a standard or practice normally followed by a reasonably prudent person under the same or similar circumstances. A violation of a Board order shall constitute, at a minimum, a moderate violation.
(iii) Major--the conduct [this is a
violation of an order of the Board or a violation that] demonstrates
gross negligence or recklessness or resulted in a threat to the
health or safety of the public and the respondent, after being notified
of the alleged violation intentionally refused or failed to take prompt
and remedial action. [; or the conduct posed a serious
threat to the health or safety of the public; or, after being notified
of the alleged violation and the harm or threat to the health or safety
of the public, the respondent intentionally refused or failed to provide
an available remedy to alleviate or eliminate the harm or threat to
the health or safety of the public.]
(B) Economic harm: [damage to property:]
(i) Minor--there was no apparent economic damage to property or monetary loss to the project owner or other involved persons and entities.
(ii) Moderate--economic damage to property or monetary harm to other persons or entities did not exceed $1,000, or damage exceeding $1,000 was reasonably unforeseeable.
(iii) Major--economic damage to property or economic injury to other persons or entities exceeded $1,000.
(C) Sanction history:
(i) Minor--[this is the first time an administrative
penalty or other sanction has been imposed against the respondent,
and] the respondent has not previously received a written warning
, [or] advisory notice or been subject to other
enforcement proceedings from the Board [regarding the law's
restrictions which was directed to the respondent].
(ii) Moderate--[this is the second time an administrative
penalty or other sanction has been imposed against the respondent;
or] the respondent was previously [was]
subject to an order of the Board or other enforcement proceedings
which resulted in a finding of a violation of the laws or rules over
which the TBAE has jurisdiction. [through which the Board
could have imposed an administrative penalty; or the respondent previously
received a written warning or advisory notice from the Board regarding
the law's restrictions which was directed to the respondent.]
(iii) Major--the respondent has received at least
two prior written notices or has been subject to two disciplinary
actions for violation of the rules and laws over which the TBAE has
jurisdiction. [this is at least the third time an administrative
penalty or other sanction has been imposed against the respondent
or the respondent has been subject to an order of the Board through
which the Board could have imposed an administrative penalty.]
(2) After determining whether the violation is minor, moderate, or major, the Board shall impose an administrative penalty as follows:
(A) Minor violations--if the violation is minor in
every category described in paragraph [subsection]
(1) of this section, an administrative penalty of not more than
$500 [$350] shall be imposed.
(B) Moderate violations--if the violation is moderate
in any category described in paragraph [subsection]
(1) of this section, an administrative penalty of not [less than
$351 and not] more than $2,000 [$1,200]
shall be imposed.
(C) Major violations--if the violation is major in
any category described in paragraph [subsection]
(1) of this section or if the Board determines that the facts of the
case indicate a higher penalty is necessary in order to deter similar
misconduct in the future, an administrative penalty of [
not less than $1,201 and
] not more than $5,000 shall be imposed.
(D) Because of the threat to human health, safety and well-being which necessarily arises out of a nonregistrant preparing and issuing architectural plans and specifications the Board possesses a compelling interest in ensuring that architectural plans and specifications are prepared and issued only by a registered architect or by a person who is working under the active and documented Supervision and Control of a registered Architect when required by law. If the evidence establishes that Architectural plans and specifications for a project that is not exempt from the Architects' Practice Act were prepared by a person who is not registered to engage in the Practice of Architecture and was not working under the active and documented Supervision and Control of an Architect the violation shall be presumed to be a major violation and each sheet of architectural plans or separate section of the specifications shall be considered a separate violation for purposes of calculating and imposing administrative penalties.
(E) Because of the threat to human health, safety and welfare which necessarily arises from nonregistrants engaging in the Practice of Architecture the Board has a compelling interest in ensuring that only those persons who are registered to engage in the Practice of Architecture or whose work is conducted under the active and documented Supervision and Control of a registered architect engage in the Practice of Architecture. If the evidence establishes that an Architect has sealed architectural plans and separately numbered section of the specifications without having exercised active and documented Supervision and Control of the Nonregistrants's activities the Board shall presume such conduct by the sealing architect to be a major violation and each sheet of architectural plans or separate section of the specifications shall be considered a separate violation for purposes of calculating and imposing administrative penalties.
(F) The agency is responsible for protecting the public's health, safety and welfare by interpreting and enforcing the Architects' Practice Act. In fulfilling this statutory duty the Board depends upon, and expects, that registrants and Applicants will provide complete, truthful and accurate information to the Board upon request. This prompt and accurate provision of information is essential to protecting the public's health, safety and welfare.
(G) An Architect, Candidate, or Applicant who fails, without good cause, to provide information to the Board under provision of §1.171 of this subchapter (relating to Responding to Request for Information) is presumed to be interfering with and preventing the Board from fulfilling its responsibilities. For these reasons a violation of §1.171 of this subchapter shall be considered a moderate violation if a complete response is received within 30 days after receipt of the Board's written inquiry. Any further delay constitutes a major violation. Each 15 day delay thereafter shall be considered a separate violation of these rules.
(3) In order to determine the appropriate amount in
a penalty range described in paragraph [subsection]
(2) of this section, the Board shall consider the factors described
in paragraph [subsection] (1) of this section.
(4) If the facts of a case are unique or unusual, the Board may suspend the guidelines described in this section.
§1.178.Reinstatement Following Suspension or Revocation.
If the Board suspends or revokes a person's certificate of registration as a result of disciplinary action, the person may not reinstate the certificate of registration or obtain a new certificate of registration unless the person:
(1) demonstrates that he/she has taken reasonable steps to correct the misconduct or deficiency that led to the suspension or revocation;
(2) demonstrates that reinstatement or issuance of the certificate of registration is not inconsistent with the Board's duty to protect the public by ensuring that registrants are duly qualified and fit for registration; and
(3) pays all fees and costs incurred by the Board as a result of any proceeding that led to the suspension or revocation. This shall include, but not be limited to, attorney's fees and all costs associated with the need to prosecute a Contested Case proceeding at the State Office of Administrative Hearings and subsequent activities including administrative and judicial appeals.
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 May 11, 2009.
TRD-200901785
Cathy L. Hendricks, RID
Executive Director
Texas Board of Architectural Examiners
Earliest possible date of adoption: June 21, 2009
For further information, please call: (512) 305-8544
SUBCHAPTER C. EXAMINATION
The Texas Board of Architectural Examiners proposes an amendment to §3.43, Reexamination of Chapter 3, Subchapter I, concerning Examination. Under the rule, a candidate must pass all sections of the registration examination within a 5-year which begins upon passage of a section of the examination. The amendment allows a candidate to obtain an extension of up to 6 months on the 5-year deadline if the candidate becomes a parent through the birth or adoption of a child. The amendment also deletes an obsolete "grandfather" provision that preserved pre-existing grades when the rule was initially adopted.
Cathy L. Hendricks, Executive Director, Texas Board of Architectural Examiners, has determined that for the first five-year period the amended rule is in effect, there will be no fiscal impact on state or local governments.
Ms. Hendricks also has determined that for the first five-year period the amended rule is in effect the public benefits expected as a result of the amended rule are as follows: candidates who become parents during the examination period will not forfeit passing grades due to the disruptions and distractions of parenting. The amendment would encourage parents to continue the examination process and become registered. The rule will have no impact on small business and therefore no alternative impact statement is required.
There will not be a change in the cost to persons required to comply with the section.
There may be a positive fiscal impact upon certain persons required to comply with the section to the extent they would otherwise forfeit passing grades and would incur costs to re-take sections of the examination.
Comments may be submitted to Cathy L. Hendricks, RID, Executive Director, Texas Board of Architectural Examiners, P.O. Box 12337, Austin, TX 78711-2337.
The amendment is proposed pursuant to §1051.202, Texas Occupations Code, which grants the board authority to adopt rules to administer Chapters 1051 and 1052, including rules relating to the regulation of the practice of landscape architecture. The amendment is also adopted pursuant to §1052.153, Texas Occupations Code, which requires the board to prescribe the scope of the examination and the method of procedure for the examination.
The proposed amendment does not affect any other statutes.
§3.43.Reexamination.
(a) A [Effective January 1, 2002, a]
Candidate's passing grade for any section of the examination is valid
for five (5) years. Each Candidate [who, after December 31, 2001,
is approved for examination by the Board] must pass all sections
of the examination within five (5) years after the date the Candidate
passes a section of the examination. A Candidate [approved for
examination by the Board after December 31, 2001,] who does
not pass all sections of the examination within five (5) years after
passing a section of the examination will forfeit credit for the section
of the examination passed and must pass that section of the examination
again.
(b) The Board may grant one extension to the 5-year
period for completion of the examination if a Candidate is unable
to pass all sections of the examination within that period because
of the adoption or birth of a child within that 5-year period. A Candidate
may request one extension of up to 6 months by filing a written application
with the Board together with any corroborating evidence immediately
after the Candidate learns of the impending adoption or birth. [
Each Candidate approved for examination by the Board prior to January
1, 2002, must pass all sections of the examination no later than December
31, 2006. A Candidate approved for examination by the Board prior
to January 1, 2002, who does not pass all sections of the examination
by December 31, 2006, will forfeit credit for each section of the
examination the candidate passed before January 1, 2002, and must
pass each of those sections again. The Candidate's passing grade for
any section of the examination taken after January 1, 2002, is valid
for five (5) years.]
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 May 11, 2009.
TRD-200901799
Cathy L. Hendricks
Executive Director, RID
Texas Board of Architectural Examiners
Earliest possible date of adoption: June 21, 2009
For further information, please call: (512) 305-8544
The Texas Board of Architectural Examiners proposes amendments to §3.161, Purpose and Scope and §3.162, Computation of Time of Chapter 3, Subchapter I, concerning Disciplinary Action.
The proposed changes to §3.161 will have no substantive or procedural effect upon Board enforcement actions or persons within the jurisdiction of the Texas Board of Architectural Examiners but are intended merely to simplify and modernize existing regulatory language.
The proposed changes to §3.162 will have no substantive or procedural effect upon Board enforcement actions except to create a rebuttable presumption that materials which have been sent by the Board to a person's last known address have been received by that person, or his or her agent, not less than eight (8) days after the materials have been properly deposited into the United States mail, first class postage paid. This presumption allows increased use by first class mail and conforms the agency's practice to that utilized at the State Office of Administrative Hearings which permits the use of first class mail in serving documents. See, 1 TAC §155.103. This change is expected to result in cost savings to the agency without the loss of legal rights to those persons with whom the agency is seeking to communicate. This change is also expected to make correspondence more effective because many times individuals will refuse to sign for a piece of mail which is sent by certified mail and will not retrieve it from the Post Office if delivery was attempted when the person was not present.
Cathy L. Hendricks, Executive Director, Texas Board of Architectural Examiners, has determined that for the first five-year period the amended rules are in effect, there will be no fiscal consequences to state or local governments upon implementation of either rule apart from the cost savings which will result from increased use of "regular" mail.
Ms. Hendricks also has determined that for the first five-year period the amended rules are in effect the public benefits expected as a result of the amended rule are as follows:
The simplification of language as proposed for §3.161 will result in greater comprehension of the rule's text. The proposed change will not have an impact on small businesses and there will be no change in cost to persons required to comply with this rule.
The proposed changes to §3.162 will benefit the public by decreasing agency mailing costs and making receipt of documents more certain than by exclusive reliance upon certified mail. The proposed change will not have an impact on small businesses and there will be no change in cost to persons required to comply with this rule.
Comments may be submitted to Cathy L. Hendricks, RID, Executive Director, Texas Board of Architectural Examiners, P.O. Box 12337, Austin, TX 78711-2337.
The amendments are proposed pursuant to the Architects' Practice Act, Texas Occupations Code Annotated, §§1051.001 - 1051.701 and the Landscape Architects' Practice Act, Id., §§1052.003 - 1052.252 which authorize the Texas Board of Architectural Examiners to promulgate rules relating to the practice of landscape architecture and enforcement proceedings arising out of such regulation.
The proposed amendments do not affect any other statutes.
§3.161.Purpose and Scope.
This chapter shall provide a system of procedures for the initiation, investigation, prosecution, hearing and resolution of disciplinary matters and allegations involving persons who are subject to the jurisdiction of the Texas Board of Architectural Examiners.
[(a) Unless specifically
indicated in the Rules and Regulations of the Board, this subchapter
governs the procedure followed by the Board in a Contested Case against
a Landscape Architect, in the informal disposition of a Contested
Case against a Landscape Architect, or in an informal conference with
a Landscape Architect. Unless specifically indicated, the Landscape
Architects' Registration Law, the Administrative Procedure Act, and
the Rules of Practice and Procedure of the State Office of Administrative
Hearings, as appropriate, also govern the procedure followed by the
Board in a Contested Case against a Landscape Architect.]
[(b) The Landscape Architects'
Registration Law and Sections 3.162, 3.163, 3.164, 3.167, 3.172, and
3.173 of this subchapter govern disciplinary action against a person
who is not a Landscape Architect. If the person is an Applicant, Section
3.151 of Subchapter H also governs disciplinary action against him/her.]
§3.162.Computation of Time.
(a) (No change.)
(b) A person shall be presumed to have received
all pleadings and other notices upon a showing that such materials
were sent to the respondent's last known address; the materials were
sent by United States mail, first class postage prepaid; a return
address was affixed to the exterior of the mailing materials and the
materials were not returned; and in excess of seven days has elapsed
from placement of the materials into the United States mail. [
For purposes of this subchapter, a Landscape Architect is presumed
to have received a notice from the Board on the fifth day after the
date the Board sent the notice to the Landscape Architect's current
address of record via certified mail, return receipt requested.]
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 May 11, 2009.
TRD-200901786
Cathy L. Hendricks, RID
Executive Director
Texas Board of Architectural Examiners
Earliest possible date of adoption: June 21, 2009
For further information, please call: (512) 305-8544
(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 Texas Board of Architectural Examiners or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The Texas Board of Architectural Examiners proposes the repeal of §3.163, Ex Parte Communication of Chapter 3, Subchapter I, concerning Disciplinary Action.
This rule is redundant of prohibitions already found at §2001.061 of the Texas Government Code. This section will be reserved for expansion.
Cathy L. Hendricks, Executive Director, Texas Board of Architectural Examiners, has determined that for the first five-year period after the rule is repealed there will be no fiscal implications to state or local governments.
Ms. Hendricks also has determined that for the first five-year period after the repeal of §3.163 the public benefits expected as a result of the repealed rule will be to minimize regulations which merely restate existing law.
There will not be a change in the cost to persons required to comply with the section.
Comments may be submitted to Cathy L. Hendricks, RID, Executive Director, Texas Board of Architectural Examiners, P.O. Box 12337, Austin, TX 78711-2337.
The repeal is proposed under authority of Texas Occupations Code Annotated, §1051.202 which enables the Texas Board of Architectural Examiners to adopt reasonable rules in order to administer or enforce the laws governing the practice of architecture, landscape architecture and interior design.
The proposed repeal does not affect any other statutes.
§3.163.Ex Parte Communication.
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 May 11, 2009.
TRD-200901787
Cathy L. Hendricks, RID
Executive Director
Texas Board of Architectural Examiners
Earliest possible date of adoption: June 21, 2009
For further information, please call: (512) 305-8544
The Texas Board of Architectural Examiners proposes amendments to §3.164, Initiating a Contested Case, and §3.165, Informal Disposition of a Contested Case of Chapter 3, Subchapter I, concerning Disciplinary Action.
The proposed changes to §3.164 remove the requirement that a notarized complaint is required in order to commence contested case proceedings and investigations. In order to make the process simpler and more accessible a member of the public may now file a complaint without the need to have it notarized. The other proposed change would remove language which permits the Board to refuse to disclose certain information. This change brings the Board rule into alignment with the Texas Public Information Act and does not waive any rights to information as permitted by TPIA.
The proposed changes to §3.165 simplify the overall language and would make two modifications to the present rule. Subsection (e) permits the agency to move for entry of a default judgment in those instances when a respondent, after receiving legally required notice of the docketing of a contested case proceeding alleging a violation of any law or rule over which TBAE possesses jurisdiction at the State Office of Administrative Hearings (SOAH), fails to file a written answer or other written response with SOAH. Default is also permitted if a Respondent fails to appear at a scheduled hearing of which he or she has received legally required notice.
It has been the experience of enforcement staff that individuals who, after receiving notice of the commencement of contested case proceedings, choose not to make any written reply do not generally seek or otherwise avail themselves of the due process and evidentiary protections to which they are entitled. Similarly, a person who fails after legally required notice to appear for a contested case hearing has knowingly waived due process rights. Permitting default fault under such circumstances increases efficiency in the prosecution of cases and rendition of a final agency ruling without sacrificing or prejudicing any legal rights to which respondents are entitled.
The proposed changes to §3.165(f) develop and specify those factors which the Board and the Executive Director are to consider in fixing an administrative penalty pursuant to Texas Occupations Code Annotated, §1051.452. However, rather than merely tracking the statutory language the Board proposes to more exactly detail the relevant factors which it and the Executive Director will evaluate and includes consideration of the public welfare, evaluating any harm resulting from sanctioned conduct (not simply 'economic harm'), taking into account both the specific and general deterrent value of a penalty and whether or not the Respondent has taken prompt remedial action. These changes provide greater notice to those who are subject to the Board's jurisdiction of the criteria which will be used to determine an administrative penalty and serve to prevent the Executive Director or the Board from the unbridled exercise of authority.
Cathy L. Hendricks, Executive Director, Texas Board of Architectural Examiners, has determined that for the first five-year period the amended rules are in effect there will be no fiscal implications to state or local governments.
Ms. Hendricks also has determined that for the first five-year period the amended rules are in effect the public benefits which will be realized are more efficient resolution of contested cases without any loss of due process rights and more certain criteria upon which administrative penalties may be assessed and evaluated. The rules will not have any impact on small businesses and there will be no change in cost to those persons required to comply with the proposed changes.
Comments may be submitted to Cathy L. Hendricks, RID, Executive Director, Texas Board of Architectural Examiners, P.O. Box 12337, Austin, TX 78711-2337.
The amendments are proposed pursuant to Texas Occupations Code Annotated, §1051.202 which authorizes the Board to adopt reasonable rules to administer and enforce Subtitle B of the Architects' Practice Act including the practice of architecture, landscape architecture and interior design.
The proposed amendments do not affect any other statutes.
§3.164.Initiating a Contested Case.
(a) The Board may initiate a Contested Case proceeding in response to:
(1) a [notarized] written complaint filed
by a member of the public;
(2) information provided in a registration application or renewal form; or
(3) other information known to the Board which establishes probable cause.
(b) The Board shall not act on a written complaint
filed by a member of the public unless the allegations in the complaint[
, if proven,] describe conduct that violates a rule or statutory
provision enforceable by the Board.
(c) (No change.)
[(d) The Board may refuse
to disclose the identity of a person who furnishes information regarding
an alleged violation of a rule or statutory provision enforceable
by the Board.]
(d) [(e)] The Board shall not
act on a written complaint filed by a member of the public if the
complaint is filed later than ten (10) years after the date of the
act(s) or omission(s) described in the complaint.
§3.165.Informal Disposition of a Contested Case.
(a) A Contested Case may be resolved informally at
any time [after the Contested Case is initiated by the Board].
(b) If the respondent agrees in writing to a settlement
agreement [arising out of the proposed informal disposition of
a Contested Case] and the Executive Director executes the written
settlement agreement, the settlement agreement shall be presented
to the Board for approval or rejection. The settlement agreement must
include written findings of fact and conclusions of law and may be
in the form of a consent order, letter of reprimand, or other format
approved by the Executive Director.
(c) - (d) (No change.)
(e) An informal disposition may be made of a Contested
Case by default. Default occurs whenever a respondent neither
answers nor makes other written response to the filing of a Complaint
or Petition at the State Office of Administrative Hearings alleging
a violation of any law or Rule over which TBAE possesses jurisdiction.
Default also occurs if the respondent fails to appear at a scheduled
and properly noticed hearing to be conducted by the State Office of
Administrative Hearings. [Default shall occur when a respondent
neither responds in writing nor appears at a scheduled hearing related
to a disciplinary matter.]
(f) The Board and the Executive Director shall take into account the following factors when considering a proposed settlement agreement:
[(1) the seriousness of
the conduct that is the source of the allegation(s) against the respondent,
including consideration of:]
(1) [(A)] the nature, circumstances,
extent, and gravity of any relevant act or omission; [, and
]
(2) [(B)] the hazard or potential
hazard to the health, safety or welfare [health or
safety] of the public;
(3) [(2)] the economic harm
resulting from the conduct [damage to property caused by
the conduct];
(4) [(3)] the respondent's history
concerning any previous ground for sanction;
(5) [(4)] the severity of penalty
necessary to effectuate specific and general deterrence [
deter a future ground for sanction];
(6) [(5)] any effort by
the respondent to take prompt remedial action; [to correct
the ground for sanction];
(7) [(6)] the economic benefit
gained by the respondent as a result of the conduct; [and]
(8) [(7)] any other matter justice may require; and
(9) [(8)] When considering a
referral from the Texas Department of Licensing and Regulation, in
addition to the factors described in this subsection, the Board shall
consider the actual number of days that the submission was late.
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 May 11, 2009.
TRD-200901788
Cathy L. Hendricks, RID
Executive Director
Texas Board of Architectural Examiners
Earliest possible date of adoption: June 21, 2009
For further information, please call: (512) 305-8544
The Texas Board of Architectural Examiners proposes amendments to §3.167, Publication of Disciplinary Action of Chapter 3, Subchapter I, concerning Disciplinary Action.
The proposed changes to §3.167 is in order to obtain greater clarification concerning the Board's directive that persons who have "received" disciplinary action will have their names published. While this has been the Board's practice it was felt that present language, which requires persons who are "the subject" of disciplinary proceedings to have their names publicized, is overly broad.
Cathy L. Hendricks, Executive Director, Texas Board of Architectural Examiners, has determined that for the first five-year period the amended rule is in effect there will be no fiscal implications to state or local governments.
Ms. Hendricks also has determined that for the first five-year period the amended rule is in effect the public benefit will result from a clearer understanding of the rule. The rule will not have any impact on small businesses and there will be no change in cost to those persons required to comply with the proposed changes.
Comments may be submitted to Cathy L. Hendricks, RID, Executive Director, Texas Board of Architectural Examiners, P.O. Box 12337, Austin, TX 78711-2337.
The amendments are proposed pursuant to Texas Occupations Code Annotated, §1051.202 which authorizes the Board to adopt reasonable rules to administer and enforce Subtitle B of the Architects' Practice Act including the practice of architecture, landscape architecture and interior design.
The proposed amendments do not affect any other statutes.
§3.167.Publication of Disciplinary Action.
(a) The Board shall cause to be published in the Board's
official newsletter, on the Board's Web site, in a newspaper, or in
another publication the name of any person who has received [
is the subject of] disciplinary action by the Board. The publication
may include a narrative summary of the facts giving rise to disciplinary
action and a description of the action taken.
(b) (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 May 11, 2009.
TRD-200901789
Cathy L. Hendricks, RID
Executive Director
Texas Board of Architectural Examiners
Earliest possible date of adoption: June 21, 2009
For further information, please call: (512) 305-8544
The Texas Board of Architectural Examiners proposes amendments to §3.170, Referrals from the Texas Department of Licensing and Regulation; §3.171, Responding to Request for Information; §3.172, Continuing Violation; §3.173, Violation By One Not a Landscape Architect; §3.174, Complaint Process, and §3.175, Evaluation of Evidence by Expert of Chapter 3, Subchapter I, concerning Disciplinary Action.
Section 3.170 requires Landscape Architects to submit certain plans and specifications to the Texas Department of Licensing and Regulation for accessibility review not later than the fifth day after issuance. Architectural Barriers Act, Texas Government Code Annotated §469.101. If a landscape architect fails to do so, the TDLR reports the legal violation to the Texas Board of Architectural Examiners. Id., §469.101. The Texas Board of Architectural Examiners will, upon confirmation of a violation, take appropriate disciplinary action in order to further the policy of this state which is to eliminate, to the extent possible, unnecessary barriers encountered by persons with disabilities whose ability to achieve maximum personal independence is needlessly restricted. Texas Occupations Code Annotated §1051.702(2) (West 2005 & Supp. 2008).
The Board proposes minor changes to §3.170 which result in greater certainty regarding the enforcement action which will be taken by directing the Executive Director to issue a written warning upon a first violation and requiring the imposition of an administrative penalty for all subsequent violations.
Section 3.171 requires certain persons to respond to a request for information from the Board. It is the mission of the Texas board of Architectural examiners to ensure a safe built environment for Texas. In order to effectively and efficiently investigate and prosecute instances of statutory or regulatory violation it is essential that the Board be able to acquire information expeditiously; the use of investigatory letters as permitted by §3.171 has proven effective in these efforts.
The Board proposes to expand the class of persons who are responsible for responding to letters of inquiry to include candidates and applicants as well as registrants. These persons are often in a position to provide vital information concerning matters within the Board's jurisdictions and relevant to enforcement proceedings. In proposed change will, if adopted, permit agency staff to request that a registrant, candidate or applicant provide records and documents in response to a request.
The proposed changes permit a failure to respond to be treated as a distinct disciplinary infraction from the underlying matter being investigated, and, in order to stress the importance of a candidate's, applicant's or registrant's cooperation with a Board inquiry, state that a failure to respond within 30 days may constitute grounds for the Board to impose suspension or revocation of a registration.
Section 3.172 will be amended to include a new subsection (b) which expressly classifies each sheet of plans and each separate section of specifications which are prepared, modified or issued in violation of applicable statutory and regulatory requirements to constitute discreet and independent legal violations each of which provides a basis for the imposition of an administrative penalty. The Texas Board of Architectural Examiners proposes this addition in recognition of the fact that plans and specifications which are issued in violation of law present an unacceptable risk of significant bodily harm and economic injury to the citizens of Texas. It is anticipated that registrants and nonregistrants will be deterred from issuing plans and specifications in violation of the law.
The amendment to §3.173 bring the rule into conformity with Subtitle B of the Texas Occupations Code as well as the Administrative Procedure Act (Title 10, Texas Government Code) by deleting references to Section 8 of the Landscape Architects' Registration Law (Art. 294a, Vernon's Texas Civil Statutes). The rule implements the practice of the Texas Board of Architectural Examiners to refer all contested case hearings to the State Office of Administrative Hearings (SOAH) for issuance of a proposal for decision regardless of whether the case involves a registrant or a nonregistrant. Because the Board no longer conducts contested case hearings, subsection (d)(3), (4) and (5) of the original rule are no longer necessary. In place of procedural rules governing a contested case hearings the proposed rules would set forth the procedural sets to be taken by the Executive Director once an investigation determined that a nonregistrant has engaged in a legal violation including methods of settlement and notification of rights to a hearing at SOAH. The proposed amendment will make it clear that a recommended settlement or other informal disposition presented to the Board by the Executive Director may, but need not be, approved by the Board. This is consistent with well established law that only a Board may act on behalf of the agency in such instances.
The proposed amendment to §3.174 permits the agency to provide a copy of its policies and procedures to a complainant and/or a respondent by providing information which will allow review of the policies on the internet or, if requested by a party, by mailing a copy of the policies and procedures upon request. The changes to §3.174 also establish "probable cause" as the investigatory standard required to proceed with investigation and settlement/prosecution of a disciplinary matter. This standard has a clear legal definition and is readily applicable to agency investigations. This does not, however, diminish the agency's responsibility to prove a case by the customary "preponderance of the evidence" standard when prosecuting cases through contested case proceedings before the State Office of Administrative Hearings. The final substantive change proposed for §3.174 authorizes, but does not require, the Executive Director to respond to a request for reconsideration if a complaint is dismissed because of lack of probable cause to continue the investigation and refer a matter for prosecution.
Section 3.175 requires that any case involving professional competency or honesty be evaluated by a landscape architect to ensure that professional standards applicable to the profession be objectively reviewed by a peer prior to the docketing of a case at the State Office of Administrative Hearings. The proposed amendment expands this to include 'candidate' along with registrants or applicants as persons whose conduct may be subject to peer review and strikes as unnecessary the entirety of subsection (c). The Board believes that while the qualifications of an expert are very important to valid and reliable case evaluation, there is no need to establish the thresholds and automatic disqualifications which presently exist.
Cathy L. Hendricks, Executive Director, Texas Board of Architectural Examiners, has determined that for the first five-year period the amended rules are in effect, there will be no fiscal implications to state or local governments.
Ms. Hendricks also has determined that for the first five-year period the amended rules are in effect the public benefits expected as a result of the amended rules are to cause greater compliance by those within the jurisdiction of the agency and to increase efficiencies in acquiring information necessary for thorough investigation and prosecution of enforcement matters. The rules will not have an impact on small businesses.
There will not be a change in the cost to persons required to comply with the sections.
Comments may be submitted to Cathy L. Hendricks, RID, Executive Director, Texas Board of Architectural Examiners, P.O. Box 12337, Austin, TX 78711-2337.
The amendments are proposed pursuant to the Architects' Practice Act, Texas Occupations Code Annotated §1051.202 which authorizes the Board to adopt reasonable rules as necessary to administer and enforce the Architects' Practice Act, the landscape Architects' Practice Act and the Interior Designers' Title Act.
The proposed amendments do not affect any other statutes.
§3.170.Referrals from the Texas Department of Licensing and Regulation.
(a) If a Landscape Architect fails to submit any document to the Texas Department of Licensing and Regulation as required by the Architectural Barriers Act, or a rule or procedure enacted pursuant to the Architectural Barriers Act, the Board may take disciplinary action against the Landscape Architect.
(b) A Landscape Architect's failure to submit
documents to the Texas Department of Licensing and Regulation as required
by subsection (a) of this section shall, result in a written warning
from the Executive Director. An administrative penalty shall be imposed
upon second and subsequent failures. [If a Landscape Architect
submits a document described by subsection (a) of this section no
more than fifteen (15) days following the deadline for submission
of the document, the Executive Director may issue an informal reprimand
to the Landscape Architect. It shall not be necessary for the informal
reprimand to be presented to or approved by the Board.]
(c) When considering potential disciplinary action,
including imposition of an administrative penalty [pursuant
to subsection (a) of this section], the Board and the Executive
Director shall take into account the number of previous incidents
involving a registrant's failure to timely submit documents to the
Texas Department of Licensing and Regulation and the length of the
delay in making the present submission. [the factors listed
in Subsection 3.165(f) of this subchapter.]
§3.171.Responding to Request for Information.
A Landscape Architect, a Candidate or an Applicant shall
answer an inquiry or produce requested documents to the Board
concerning any matter under the jurisdiction of the Board within thirty (30)
days after the date the person receives the inquiry. [
Landscape Architect receives notice of the inquiry. A Landscape Architect's
failure] Failure to respond within thirty (30) days
may [to an inquiry concerning any matter under the jurisdiction
of the Board shall] constitute a separate violation subject
to disciplinary action by the Board up to and including suspension
or revocation of a registration.
§3.172.Continuing Violation.
(a) Each day a violation of any statutory provision or rule enforced by the Board occurs or continues may be considered a separate violation subject to disciplinary action by the Board.
(b) Each sheet of landscape architectural plans and each separate section of the specifications which are prepared, modified or issued in violation of these rules or any laws over which the Board has jurisdiction shall each be considered an independent violation of applicable rules and laws.
§3.173.Violation By One Not a Landscape Architect.
(a) A person who is not a Landscape Architect who violates
any of the laws or rules over which the Board has jurisdiction
is [title or practice restrictions of the Landscape Architects'
Registration Law may be] subject to any or all of the following:
(1) judicial proceedings for injunctive relief; [
injunctive action; and/or]
(2) criminal prosecution in a court of appropriate jurisdiction;
(3) [(2)] imposition of an
administrative penalty;
(4) issuance of a cease and desist order from the Board.
(b) In taking action against a person who is not a Landscape Architect, the Board may be represented by agency staff, the Texas Attorney General, by a county or district attorney, or by other counsel as necessary.
(c) The Executive Director may recommend and the Board may
, after notice and an opportunity for hearing, impose
an administrative penalty in the manner prescribed in Subchapter
I of the Architects' Practice Act and otherwise as permitted by law
and Board rules [Section 8 of the Landscape Architects'
Registration Law.]
(d) A person charged with a violation may request a hearing to contest a proposed administrative penalty that has been recommended by the Executive Director:
(1) A request for a hearing must be received in the Board's office no later than the 20th day after the date the person receives notice that the Executive Director has recommended the imposition of an administrative penalty.
(2) The hearing shall be conducted by an Administrative
Law Judge at the State Office of Administrative Hearings under provision
of the Administrative Procedure Act, Texas Government Code Annotated,
Chapter 2001, and this subchapter. [The Board shall preside
over a hearing held pursuant to this section. The Board shall send
notice of the date, time, and location of the hearing to the person
charged with a violation. During the hearing, the Board's staff and
the person charged with a violation or the person's authorized representative
shall have the opportunity to present testimony and other evidence
and make legal arguments regarding the alleged violation and the amount
of the proposed administrative penalty.]
[(3) During a hearing on
a proposed administrative penalty, the Board shall have the authority
and duty to:]
[(A) conduct a full, fair, and impartial hearing;]
[(B) take action to avoid unnecessary delay in the disposition of the proceeding;]
[(C) maintain order; and]
[(D) regulate the conduct of the parties and their authorized representatives, including the authority and duty to limit irrelevant, immaterial, and unduly repetitious testimony and reasonably limit the time for presentations.]
[(4) After a hearing on
a proposed administrative penalty, the Board's chair shall issue a
written order stating the Board's findings regarding the occurrence
of a ground for sanction and the amount of the penalty, if any. In
determining the amount of the penalty, if any, the Board shall consider
the factors listed in Subsection 8(j) of the Landscape Architects'
Registration Law.]
[(5) The Board may stop
a hearing on a proposed administrative penalty in order to consult
privately with legal counsel regarding any matter related to the hearing.]
(e) If a person charged with a violation agrees to
a proposed administrative penalty recommended by the Executive Director,
the Board may [shall] approve the Executive
Director's recommendation and order payment of the proposed penalty
without a hearing.
(f) Within thirty (30) days after the date on which
the Board's order imposing an administrative penalty or taking
other final agency action in a contested case proceeding becomes
final, the person charged must pay the administrative penalty and
otherwise ensure compliance with the terms set forth in the Board's
Final Order [in full] or file a petition for judicial
review with a district court in Travis County as provided by Subchapter
G, Chapter 2001, Government Code.
(g) If the Executive Director determines that a Nonregistrant is violating, or has violated, a statutory provision or rule enforced by the Board, the Executive Director may:
(1) issue to the Nonregistrant a written notice describing
the alleged violation and the Executive Director's intention [
intent] to request that the Board impose administrative
penalties and issue a cease and desist order. The written
notice shall offer the Nonregistrant an opportunity to resolve all
matters contained in the written notice by means of an agreed order
or other instrument deemed appropriate by the Executive Director and
of the Nonregistrant's ability to request an informal conference as
well as of his or her right to request a hearing before an Administrative
Law Judge at the State Office of Administrative Hearings; and
[and offering an opportunity for a hearing regarding the alleged
violation pursuant to Section 1051.504 of the Texas Occupations Code.]
[(2) request that the Board,
after providing an opportunity for a hearing as described in subsection
(g)(1) of this section, issue a cease and desist order to the Nonregistrant
prohibiting the Nonregistrant's misconduct; and]
(2) [(3)] take any other action
and impose any other penalty described in this section or permitted
[provided] by [other] law.
§3.174.Complaint Process.
(a) - (b) (No change.)
(c) Once a complaint has been received, the Board's enforcement staff shall:
[(1) provide the complainant
and respondent with copies of the Board's policies and procedures
regarding complaint investigation and resolution;]
(1) [(2)] conduct a preliminary
evaluation of the complaint within thirty (30) days to determine:
(A) Jurisdiction: whether the complaint provides information sufficient to establish probable cause for the Board's staff to believe an actionable violation might have occurred;
(B) Disciplinary History: whether there has been previous enforcement activity involving the person against whom the complaint has been filed; and
(C) Priority Level: the seriousness of the complaint relative to other pending enforcement matters;
(2) provide the complainant and respondent with information which will permit review of the Board's policies and procedures from the Board's web site regarding complaint investigation and resolution. If the complainant or respondent requests a copy of the policies and procedures in written format a copy shall be mailed upon request.
(3) notify the complainant and respondent of the status of the investigation at least quarterly unless providing notice would jeopardize an investigation; and
(4) maintain a complaint file that includes at least:
(A) the name of the person who filed the complaint unless the complaint was filed anonymously;
(B) the date the complaint was received by the Board's staff;
(C) a description of the subject matter of the complaint;
(D) the name of each person contacted in relation to the complaint;
(E) a summary of the results of the review and investigation of the complaint; and
(F) an explanation for the reason the complaint was dismissed if the complaint was dismissed without action other than the investigation of the complaint.
(d) - (e) (No change.)
(f) If the Board's staff proceeds with an investigation, the staff shall:
(1) investigate the complaint according to the priority level assigned to the complaint;
(2) notify the complainant and respondent that, as a result of the staff's preliminary evaluation of the complaint, the staff has determined that the Board has jurisdiction over the allegations(s) described in the complaint and has decided to proceed with an investigation of the allegation(s) against the respondent; and
(3) gather sufficient information and evidence to determine whether there is probable cause to believe that a violation of a statutory provision or rule enforced by the Board has occurred.
(g) (No change.)
(h) If the information and evidence gathered during
an investigation are insufficient to establish probable cause
to believe [prove] that a violation has occurred,
the Board's staff shall:
(1) dismiss the complaint;
(2) send notices to the complainant and respondent regarding the dismissal;
(3) if warranted, include in the respondent's notice a recommendation or warning regarding the respondent's future conduct; and
(4) if a complaint is determined to be unfounded, state in the respondent's notice that no violation was found.
(i) If the information and evidence gathered during
an investigation are sufficient to establish probable cause to
believe [prove] that a violation has occurred, the
Board's staff shall:
(1) seek to resolve the matter pursuant to §§3.165,
3.166 [section 3.165] or [section] 3.173
of this subchapter; or
(2) issue a warning to the respondent if the violation is the respondent's first violation and:
(A) the respondent has not received a written warning
or advisory notice from the Board [regarding the law's restrictions
which was directed to the respondent];
(B) the respondent provided a satisfactory remedy which
has [that alleviated or] eliminated any harm or threat
to the health or safety of the public; and
(C) the guidelines for determining an appropriate penalty for the violation recommend an administrative penalty or a reprimand as an appropriate sanction for the violation.
(j) (No change.)
(k) If a complaint is dismissed, the complainant may submit to the Executive Director a written request for reconsideration. The written request must explain why the complaint should not have been dismissed. The Executive Director may, but is not required to, respond to the request for reconsideration.
§3.175.Evaluation of Evidence by Expert.
(a) If the Board's staff determines that a respondent
who is a Registrant, Candidate, or Applicant appears to
have engaged in the Practice of Landscape Architecture [
acted] in a manner that was Reckless, Grossly [
reckless, grossly] incompetent, or dishonest, the matter may not be
docketed at [presented to the Board or referred to
] the State Office of Administrative Hearings for a formal hearing unless the
evidence and information gathered during the investigation have been
reviewed by a member of the Board or the Board's staff or a consultant
who is registered as a Landscape Architect.
(b) The purpose of the review [described in subsection
(a) of this section] shall be to confirm, prior to the commencement
of formal disciplinary proceedings, that the respondent's professional
conduct did not satisfy the requisite standard of care which
should be applied by a reasonably prudent Landscape Architect under
similar circumstances.
[(c) In order to act as
a consultant for the purposes of subsection (a) of this section, a
person must:]
[(1) have been actively registered as a Landscape Architect for at least five (5) years;]
[(2) have significant experience in the area(s) relevant to the issue(s) to be considered by the consultant; and]
[(3) not have been the subject of disciplinary action by the Board at any time.]
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 May 11, 2009.
TRD-200901790
Cathy L. Hendricks, RID
Executive Director
Texas Board of Architectural Examiners
Earliest possible date of adoption: June 21, 2009
For further information, please call: (512) 305-8544
The Texas Board of Architectural Examiners proposes amendments to §3.177, Administrative Penalty Schedule, and §3.178, Reinstatement Following Suspension or Revocation, of Chapter 3, Subchapter I, concerning Disciplinary Action.
The Texas Board of Architectural Examiners ("Board") is responsible for enforcing the Architects' Practice Act, Texas Occupations Code Annotated §§1051.001 - 1051.701 (West 2004 & Supp. 2008) and the landscape Architects' Practice Act, Id., §§1052.003 - 1052.155. Upon a finding that disciplinary action is warranted the Board is permitted by statute to impose administrative penalties as well as suspend or revoke the certificate of registration of a registered landscape architect. Id., §§1051.451, 1051.751, 1052.251 - 1052.252. In conjunction with this authority the Board is required by statute to adopt an administrative penalty schedule and may reinstate a certificate of registration which has been suspended or revoked. Id., §1051.403, §1051.452(c).
The Board proposes changes to the present administrative penalty schedule for violations of the Landscape Architects' Practice Act as set forth in §3.177 and to amend §3.178. The proposed changes to §3.178 will implement statutory language which permits the board to assess "all fees and costs incurred by the Board as the result of any proceeding that led to the denial, revocation or suspension [of the certificate of registration]." Texas Occupations Code Annotated §1051.403(1) (West 2004 & Supp. 2008).
The newly stated purpose of the penalty schedule found in §3.177 is to "guide the Board's assessment of an appropriate administrative penalty." The Texas Board of Architectural Examiners recognizes that uniformity in the application of a penalty schedule is necessary to ensure that similar situated individuals are treated in a consistent manner and to thereby avoid even the appearance of unbridled agency discretion.
Equally important, however, is the Board's recognition that each case must be evaluated based upon the unique facts and the underlying equities of any given situation. In order to treat similarly situated individuals in a consistent manner the proposed rule incorporates concrete criteria and finite rages of penalty in conjunction with a recognition that the regulatory criteria are to "guide the Board's assessment" rather than compel the imposition of a specific administrative penalty.
The administrative penalty schedule presently classifies violation(s) as "minor", "moderate" or "major." The proposed amendments would continue this classification system, add clarifying language and allow consideration of relevant factors which are not expressly set forth in the rule as it now exists but which the Board feels to be significant for determining an appropriate administrative penalty for each of the three classifications. Making these criteria express will give notice of those factors upon which the Board will place primary reliance.
The proposed amendments will increase the penalties which the Board may impose within each of the three classifications and expand the type of legally recognized harm which the Board may consider beyond simply "economic damage to property" to include the broader concept of "monetary loss to the project owner or other involved persons and entities" as well as other "economic injury."
The resulting administrative penalty associated with each of the three classifications has been increased. A minor violation may result in an administrative penalty of not more than $500.00. Previously the amount was $350.00. A moderate violation may result in an administrative penalty of not more than $2,000.00. Previously a moderate violation was subject to a penalty of between $351.00 and $1,200.00. A major violation may not exceed $5,000.00. Many of the criteria, as well as the maximum administrative penalty amount of $5,000.00, reflect statutory language contained at Texas Occupations Code Annotated, §§1051.451 - 1051.452.
These changes reflect enforcement experience encountered by the agency and the need to consider unique circumstances of each case while also serving as a general and specific deterrent to violations. Enforcement history has shown that effective deterrent is as essential to the Board's mission of ensuring a safe built environment as is aggressive investigation and prosecution of legal violations.
The proposed rules would, for three defined types of statutory violations, implement specific penalty ranges for the violations. The Board has determined that these violations present significant risk of injury and are so fundamental to the practice of landscape architecture that they should presumptively be classified as 'major' violations.
The first violation involves the situation in which construction documents for nonexempt work are prepared and/or issued by persons who are not landscape architects.
The second specific violation addressed by the proposed rules changes involves the signing and sealing of construction documents by a landscape architect who is under a duty to exercise supervision and control over the work of a nonregistrant. "Supervision and Control" is defined in 22 TAC §3.5(54). The Board will evaluate evidence, including correspondence, to ensure that the supervision and control exercised by a registrant over the work of a nonregistrant is active, affirmative and superior rather than passive and subservient during the entire design process.
The third violation which will be presumed to be a 'major' violation for calculation of an administrative penalty results from failure to respond to a Board inquiry made under authority of 22 TAC §3.171.
The Board has determined that the risk to the health, safety and welfare of citizens is always put at an unacceptable risk of harm when persons who lack the education, training and experience of registered landscape architects engage in the practice of landscape architecture and it therefore possesses a compelling interest in deterring and sanctioning the unauthorized practice of landscape architecture. This interest is furthered by a presumption that unauthorized practice is always a 'major' violation.
The Board has, within the proposed rule change, made it clear that each individual document and separately numbered section of the landscape architectural specifications prepared by a nonregistrant will be treated as a separate violation. As an example, an unregistered person who prepares and issues five (5) sheets of landscape architectural plans in violation of the Landscape Architects' Practice Act will be considered to have engaged in five (5) separate legal violations each of which may be classified as a "major" administrative penalty, i.e., warranting a penalty up to $5,000.00 or, under these facts, $25,000 in the aggregate.
It is the expectation of the Board that significant deterrent value will be recognized from the combined effect of the proposed changes to §3.177 and that acquisition of information in response to Board inquiry made under authority of 22 TAC §3.171 will become more efficient and effective for the prompt investigation of cases.
The Board has also determined that the failure of a registrant to actively and affirmatively exercise "supervision and control" over the work of a nonregistrant when such a duty exists likewise presents unacceptable risks of harm and, for the same policy reasons as detailed above, has classified such a failure as a "major" violation. Similarly, each sheet of landscape architectural plans and separately numbered section of the specifications will be deemed separate violations.
The efficient investigative functions of the Board requires that accurate information be provided when sought under authority of 22 TAC §3.171. The proposed rule change would place a failure to timely respond within the administrative penalty schedule as a "moderate" violation if the response is received within 60 days of receipt of the inquiry or, to put it differently, if the response is no more than 30 days late. However, any delay beyond 30 days is considered a "major" violation with each 15 day period constituting a separate penalty.
The proposed changes to the administrative penalty schedule would add content which strengthens the enforcement mechanisms available to TBAE and gives more precise notice to stakeholders and other interested parties of which criteria will be evaluated in order to (a) classify a violation as "minor", "moderate" or "major" and (b) the consequences of such classification.
The Board believes that there will be substantial deterrent effect resulting from adoption of the proposed changes to §3.177 which will result in increased compliance by those under the agency's jurisdiction.
The Board also proposes to change §3.178 which addresses the reinstatement of a registrant after his or her certificate of registration has been suspended or revoked. The proposed change is based upon the statutory language found in Texas Occupations Code Annotated §1051.403(1) (West 2004 & Supp. 2008) (Board may assess "all fees and costs incurred by the Board as the result of any proceeding that led to the denial, revocation or suspension [of the certificate of registration].") The proposed change makes clear that the Board, as a condition of issuance or reissuance of a certificate of registration, may require that attorney's fees and other costs directly associated with a prior contested case proceeding resulting in "the denial, revocation or suspension" of a registration be paid to the agency.
Those who seek to have their certificates of registration reinstated will be now be aware that the privilege of reinstatement will require, among other things reimbursement to the agency. This is not a rule which seeks to impose attorney's fees and related costs by the prevailing party but, rather, a condition precedent to the reinstatement of a certificate of registration which was suspended or revoked through contested case proceedings.
Cathy L. Hendricks, Executive Director, Texas Board of Architectural Examiners, has determined that for the first five-year period the amended rules are in effect, there will be no fiscal implications to state or local governments. While penalties may be increased to serve the desired deterrent purposes the number of violations will decrease.
Ms. Hendricks also has determined that for the first five-year period the amended rules are in effect the public benefits expected as a result of the amended rules are to cause greater compliance by those within the jurisdiction of the agency and to increase efficiencies in acquiring information necessary for thorough investigation and prosecution of enforcement matters. The rules will not have an impact on small businesses.
There will not be a change in the cost to persons required to comply with the sections except that those individuals who have had their certificates of registration revoked or suspended by previous contested case proceedings will be required to pay the fees and costs arising out of those proceedings.
Comments may be submitted to Cathy L. Hendricks, RID, Executive Director, Texas Board of Architectural Examiners, P.O. Box 12337, Austin, TX 78711-2337.
The amendments are proposed pursuant to the Landscape Architects' Practice Act, Texas Occupations Code Annotated §1052.202.
The proposed amendments do not affect any other statutes.
§3.177.Administrative Penalty Schedule.
If the Board determines that an administrative penalty is the
appropriate sanction for a violation of any of the statutory provisions
or rules enforced by the Board, the following guidelines shall be
applied to guide the Board's assessment of an appropriate [
determine the amount of the] administrative penalty:
(1) The Board shall consider the following factors to determine whether the violation is minor, moderate, or major:
(A) Seriousness of misconduct and efforts to correct the ground for sanction:
(i) Minor--the respondent has demonstrated that he/she was unaware that his/her conduct was prohibited and unaware that the conduct was reasonably likely to cause the harm that resulted from the conduct or the respondent has demonstrated that there were significant extenuating circumstances or intervening causes for the violation; and the respondent has demonstrated that he/she provided a satisfactory remedy that alleviated or eliminated any harm or threat to the health or safety of the public.
(ii) Moderate--the violation shows that the respondent knowingly disregarded a standard or practice normally followed by a reasonably prudent person under the same or similar circumstances. A violation of a Board order shall constitute, at a minimum, a moderate violation.
(iii) Major--the conduct [this is a
violation of an order of the Board or a violation that] demonstrates
gross negligence or recklessness or resulted in a threat to the
health or safety of the public and the respondent, after being notified
of the alleged violation intentionally refused or failed to take prompt
and remedial action. [; or the conduct posed a serious
threat to the health or safety of the public; or, after being notified
of the alleged violation and the harm or threat to the health or safety
of the public, the respondent intentionally refused or failed to provide
an available remedy to alleviate or eliminate the harm or threat to
the health or safety of the public.]
(B) Economic harm: [damage to property:]
(i) Minor--there was no apparent economic damage to property or monetary loss to the project owner or other involved persons and entities.
(ii) Moderate--economic damage to property or monetary harm to other persons or entities did not exceed $1,000, or damage exceeding $1,000 was reasonably unforeseeable.
(iii) Major--economic damage to property or economic injury to other persons or entities exceeded $1,000.
(C) Sanction history:
(i) Minor--[this is the first time an administrative
penalty or other sanction has been imposed against the respondent,
and] the respondent has not previously received a written warning
, [or] advisory notice or been subject to other
enforcement proceedings from the Board [regarding the law's
restrictions which was directed to the respondent].
(ii) Moderate--[this is the second time an administrative
penalty or other sanction has been imposed against the respondent;
or] the respondent was previously [was]
subject to an order of the Board or other enforcement proceedings
which resulted in a finding of a violation of the laws or rules over
which the TBAE has jurisdiction. [through which the Board
could have imposed an administrative penalty; or the respondent previously
received a written warning or advisory notice from the Board regarding
the law's restrictions which was directed to the respondent.]
(iii) Major--the respondent has received at least
two prior written notices or has been subject to two disciplinary
actions for violation of the rules and laws over which the TBAE has
jurisdiction. [this is at least the third time an administrative
penalty or other sanction has been imposed against the respondent
or the respondent has been subject to an order of the Board through
which the Board could have imposed an administrative penalty.]
(2) After determining whether the violation is minor, moderate, or major, the Board shall impose an administrative penalty as follows:
(A) Minor violations--if the violation is minor in
every category described in paragraph [subsection]
(1) of this section, an administrative penalty of not more than
$500 [$350] shall be imposed.
(B) Moderate violations--if the violation is moderate
in any category described in paragraph [subsection]
(1) of this section, an administrative penalty of not [
less than $351 and not] more than $2,000 [$1,200
] shall be imposed.
(C) Major violations--if the violation is major in
any category described in paragraph [subsection]
(1) of this section or if the Board determines that the facts of the
case indicate a higher penalty is necessary in order to deter similar
misconduct in the future, an administrative penalty of [not less
than $1,201 and] not more than $5,000 shall be imposed.
(D) Because of the threat to human health, safety and well-being which necessarily arises out of a nonregistrant preparing and issuing landscape architectural plans and specifications the Board possesses a compelling interest in ensuring that landscape architectural plans and specifications are prepared and issued only by a registered landscape architect or by a person who is working under the active and documented Supervision and Control of a registered Landscape Architect when required by law. If the evidence establishes that Landscape Architectural plans and specifications for a project that is not exempt from the Landscape Architects' Practice Act were prepared by a person who is not registered to engage in the Practice of Landscape Architecture and was not working under the active and documented Supervision and Control of a Landscape Architect the violation shall be presumed to be a major violation and each sheet of landscape architectural plans or separate section of the specifications shall be considered a separate violation for purposes of calculating and imposing administrative penalties.
(E) Because of the threat to human health, safety and welfare which necessarily arises from nonregistrants engaging in the Practice of Landscape Architecture the Board has a compelling interest in ensuring that only those persons who are registered to engage in the Practice of Landscape Architecture or whose work is conducted under the active and documented Supervision and Control of a registered landscape architect engage in the Practice of Landscape Architecture. If the evidence establishes that a Landscape Architect has sealed landscape architectural plans and separately numbered section of the specifications without having exercised active and documented Supervision and Control of the Nonregistrants's activities the Board shall presume such conduct by the sealing landscape architect to be a major violation and each sheet of landscape architectural plans or separate section of the specifications shall be considered a separate violation for purposes of calculating and imposing administrative penalties.
(F) The agency is responsible for protecting the public's health, safety and welfare by interpreting and enforcing the Landscape Architects' Practice Act. In fulfilling this statutory duty the Board depends upon, and expects, that registrants and Applicants will provide complete, truthful and accurate information to the Board upon request. This prompt and accurate provision of information is essential to protecting the public's health, safety and welfare.
(G) A Landscape Architect, Candidate, or Applicant who fails, without good cause, to provide information to the Board under provision of §3.171 of this subchapter (relating to Responding to Request for Information) is presumed to be interfering with and preventing the Board from fulfilling its responsibilities. For these reasons a violation of §3.171 of this subchapter shall be considered a moderate violation if a complete response is received within 30 days after receipt of the Board's written inquiry. Any further delay constitutes a major violation. Each 15 day delay thereafter shall be considered a separate violation of these rules.
(3) In order to determine the appropriate amount in
a penalty range described in paragraph [subsection]
(2) of this section, the Board shall consider the factors described
in paragraph [subsection] (1) of this section.
(4) If the facts of a case are unique or unusual, the Board may suspend the guidelines described in this section.
§3.178.Reinstatement Following Suspension or Revocation.
If the Board suspends or revokes a person's certificate of registration as a result of disciplinary action, the person may not reinstate the certificate of registration or obtain a new certificate of registration unless the person:
(1) demonstrates that he/she has taken reasonable steps to correct the misconduct or deficiency that led to the suspension or revocation;
(2) demonstrates that reinstatement or issuance of the certificate of registration is not inconsistent with the Board's duty to protect the public by ensuring that Registrants are duly qualified and fit for registration; and
(3) pays all fees and costs incurred by the Board as a result of any proceeding that led to the suspension or revocation. This shall include, but not be limited to, attorney's fees and all costs associated with the need to prosecute a Contested Case proceeding at the State Office of Administrative Hearings and subsequent activities including administrative and judicial appeals.
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 May 11, 2009.
TRD-200901791
Cathy L. Hendricks, RID
Executive Director
Texas Board of Architectural Examiners
Earliest possible date of adoption: June 21, 2009
For further information, please call: (512) 305-8544
SUBCHAPTER C. EXAMINATION
The Texas Board of Architectural Examiners proposes an amendment to §5.53, Reexamination of Chapter 5, Subchapter I, concerning Examination. The amendment modifies the requirement that a candidate for licensure must pass all sections of the licensing examination within a 5-year period which commences upon passing a section of the examination. The amendment allows the board to grant a candidate one extension of up to six months due the candidate's becoming a parent through birth or adoption. The amendment also repeals obsolete provisions that were in place to "grandfather" previous examinees when the rule was initially adopted.
Cathy L. Hendricks, Executive Director, Texas Board of Architectural Examiners, has determined that for the first five-year period the amended rule is in effect, there will be no fiscal implications for state or local governments.
Ms. Hendricks also has determined that for the first five-year period the amended rule is in effect the public benefits expected as a result of the amended rule are as follows: the rule will allow candidates who become parents to complete the examination without forfeiting passing grades earned outside of the 5-year examination period. The amendment will have a positive fiscal impact upon certain candidates who will be able to complete the examination without repeating sections which would otherwise expire due to the 5-year deadline. The rule will have no negative impact on small business and therefore no analysis is necessary to determine if a less restrictive alternative amendment is necessary.
There will be no change in the cost to persons required to comply with the section, except for the positive fiscal impact for the persons who would otherwise incur the cost of repeating a section of the examination.
Comments may be submitted to Cathy L. Hendricks, RID, Executive Director, Texas Board of Architectural Examiners, P.O. Box 12337, Austin, TX 78711-2337.
The amendment is proposed pursuant to §1051.202, Texas Occupations Code which provides the Texas Board of Architectural Examiners authority to promulgate rules, including rules regulating the practice of interior design. The amendment is also proposed pursuant to §1053.152, Texas Occupations Code, which requires the board to establish qualifications for the issuance of a certificate of registration as an interior designer, including examination requirements.
The proposed amendment does not affect any other statutes.
§5.53.Reexamination.
(a) A [Effective January 1, 2002, a]
Candidate's passing grade for any section of the examination is valid
for five (5) years. Each Candidate [who, after December 31, 2001,
is approved for examination by the Board] must pass all sections
of the examination within five (5) years after the date the Candidate
passes a section of the examination. A Candidate [approved for
examination by the Board after December 31, 2001,] who does
not pass all sections of the examination within five (5) years after
passing a section of the examination will forfeit credit for the section
of the examination passed and must pass that section of the examination
again.
(b) The Board may grant one extension to the 5-year
period for completion of the examination if a Candidate is unable
to pass all sections of the examination within that period because
of the adoption or birth of a child within that 5-year period. A Candidate
may request one extension of up to 6 months by filing a written application
with the board together with any corroborating evidence immediately
after the Candidate learns of the impending adoption or birth. [
Each Candidate approved for examination by the Board prior to January
1, 2002, must pass all sections of the examination no later than December
31, 2006. A Candidate approved for examination by the Board prior
to January 1, 2002, who does not pass all sections of the examination
by December 31, 2006, will forfeit credit for each section of the
examination the candidate passed before January 1, 2002, and must
pass each of those sections again. The Candidate's passing grade for
any section of the examination taken after January 1, 2002, is valid
for five (5) years.]
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 May 11, 2009.
TRD-200901800
Cathy L. Hendricks, RID
Executive Director
Texas Board of Architectural Examiners
Earliest possible date of adoption: June 21, 2009
For further information, please call: (512) 305-8544
The Texas Board of Architectural Examiners proposes amendments to §5.171, Purpose and Scope and §5.172, Computation of Time of Chapter 5, Subchapter I, concerning Disciplinary Action.
The proposed changes to §5.171 will have no substantive or procedural effect upon Board enforcement actions or persons within the jurisdiction of the Texas Board of Architectural Examiners but are intended merely to simplify and modernize existing regulatory language.
The proposed changes to §5.172 will have no substantive or procedural effect upon Board enforcement actions except to create a rebuttable presumption that materials which have been sent by the Board to a person's last known address have been received by that person, or his or her agent, not less than eight (8) days after the materials have been properly deposited into the United States mail, first class postage paid. This presumption allows increased use by first class mail and conforms the agency's practice to that utilized at the State Office of Administrative Hearings which permits the use of first class mail in serving documents. See, 1 TAC §155.103. This change is expected to result in cost savings to the agency without the loss of legal rights to those persons with whom the agency is seeking to communicate. This change is also expected to make correspondence more effective because many times individuals will refuse to sign for a piece of mail which is sent by certified mail and will not retrieve it from the Post Office if delivery was attempted when the person was not present.
Cathy L. Hendricks, Executive Director, Texas Board of Architectural Examiners, has determined that for the first five-year period the amended rules are in effect, there will be no fiscal consequences to state or local governments upon implementation of either rule apart from the cost savings which will result from increased use of "regular" mail.
Ms. Hendricks also has determined that for the first five-year period the amended rules are in effect the public benefits expected as a result of the amended rule are as follows:
The simplification of language as proposed for §5.171 will result in greater comprehension of the rule's text. The proposed change will not have an impact on small businesses and there will be no change in cost to persons required to comply with this rule.
The proposed changes to §5.172 will benefit the public by decreasing agency mailing costs and making receipt of documents more certain than by exclusive reliance upon certified mail. The proposed change will not have an impact on small businesses and there will be no change in cost to persons required to comply with this rule.
Comments may be submitted to Cathy L. Hendricks, RID, Executive Director, Texas Board of Architectural Examiners, P.O. Box 12337, Austin, TX 78711-2337.
The amendments are proposed pursuant to the Architects' Practice Act, Texas Occupations Code Annotated, §1051.202 which authorizes the Texas Board of Architectural Examiners to promulgate rules in order to administer and enforce the Interior Designers' Title Act.
The proposed amendments do not affect any other statutes.
§5.171.Purpose and Scope.
This chapter shall provide a system of procedures for the initiation, investigation, prosecution, hearing and resolution of disciplinary matters and allegations involving persons who are subject to the jurisdiction of the Texas Board of Architectural Examiners.
[(a) Unless specifically
indicated in the Rules and Regulations of the Board, this subchapter
governs the procedure followed by the Board in a Contested Case against
an Interior Designer, in the informal disposition of a Contested Case
against an Interior Designer, or in an informal conference with an
Interior Designer. Unless specifically indicated, the Interior Designers'
Registration Law, the Administrative Procedure Act, and the Rules
of Practice and Procedure of the State Office of Administrative Hearings,
as appropriate, also govern the procedure followed by the Board in
a Contested Case against an Interior Designer.]
[(b) The Interior Designers'
Registration Law and Sections 5.172, 5.173, 5.174, 5.177, 5.182, and
5.183 of this subchapter govern disciplinary action against a person
who is not an Interior Designer. If the person is an Applicant, Section
5.160 of Subchapter H also governs disciplinary action against him/her.]
§5.172.Computation of Time.
(a) (No change.)
(b) A person shall be presumed to have received
all pleadings and other notices upon a showing that such materials
were sent to the respondent's last known address; the materials were
sent by United States mail, first class postage prepaid; a return
address was affixed to the exterior of the mailing materials and the
materials were not returned; and in excess of seven days has elapsed
from placement of the materials into the United States mail. [
For purposes of this subchapter, an Interior Designer is presumed
to have received a notice from the Board on the fifth day after the
date the Board sent the notice to the Interior Designer's current
address of record via certified mail, return receipt requested.]
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 May 11, 2009.
TRD-200901792
Cathy L. Hendricks, RID
Executive Director
Texas Board of Architectural Examiners
Earliest possible date of adoption: June 21, 2009
For further information, please call: (512) 305-8544
(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 Texas Board of Architectural Examiners or in the Texas Register office, Room 245, James Earl Rudder Building, 1019 Brazos Street, Austin.)
The Texas Board of Architectural Examiners proposes the repeal of §5.173, Ex Parte Communication of Chapter 5, Subchapter I, concerning Disciplinary Action.
This rule was redundant of prohibitions already found at §2001.061 of the Texas Government Code. This section will be reserved for expansion.
Cathy L. Hendricks, Executive Director, Texas Board of Architectural Examiners, has determined that for the first five-year period after the rule is repealed there will be no fiscal implications to state or local governments.
Ms. Hendricks also has determined that for the first five-year period after the repeal of §5.173 the public benefits expected as a result of the repealed rule will be to minimize regulations which merely restate existing law.
There will not be a change in the cost to persons required to comply with the section.
Comments may be submitted to Cathy L. Hendricks, RID, Executive Director, Texas Board of Architectural Examiners, P.O. Box 12337, Austin, TX 78711-2337.
The repeal is proposed under authority of Texas Occupations Code Annotated §1051.202 which enables the Texas Board of Architectural Examiners to adopt reasonable rules in order to administer or enforce the laws governing the practice of architecture, landscape architecture and interior design.
The proposed repeal does not affect any other statutes.
§5.173.Ex Parte Communication.
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 May 11, 2009.
TRD-200901793
Cathy L. Hendricks, RID
Executive Director
Texas Board of Architectural Examiners
Earliest possible date of adoption: June 21, 2009
For further information, please call: (512) 305-8544
The Texas Board of Architectural Examiners proposes amendments to §5.174, Initiating a Contested Case, and §5.175, Informal Disposition of a Contested Case of Chapter 5, Subchapter I, concerning Disciplinary Action.
The proposed changes to §5.174 remove the requirement that a notarized complaint is required in order to commence contested case proceedings and investigations. In order to make the process simpler and more accessible a member of the public may now file a complaint without the need to have it notarized. The other proposed change would remove language which permits to Board to refuse to disclose certain information. This change brings the Board rule into alignment with the Texas Public Information Act and does not waive any rights to without information as permitted by TPIA.
The proposed changes to §5.175 simplify the overall language and would make two modifications to the present rule. Subsection (e) permits the agency to move for entry of a default judgment in those instances when a respondent, after receiving legally required notice of the docketing of a contested case proceeding alleging a violation of any law or rule over which TBAE possesses jurisdiction at the State Office of Administrative Hearings (SOAH), fails to file a written answer or other written response with SOAH. Default is also permitted if a Respondent fails to appear at a scheduled hearing of which he or she has received legally required notice.
It has been the experience of enforcement staff that individuals who, after receiving notice of the commencement of contested case proceedings, choose not to make any written reply do not generally seek or otherwise avail themselves of the due process and evidentiary protections to which they are entitled. Similarly, a person who fails after legally required notice to appear for a contested case hearing has knowingly waived due process rights. Permitting default fault under such circumstances increases efficiency in the prosecution of cases and rendition of a final agency ruling without sacrificing or prejudicing any legal rights to which respondents are entitled.
The proposed changes to §5.175(f) develop and specify those factors which the Board and the Executive Director are to consider in fixing an administrative penalty pursuant to Texas Occupations Code Annotated, §1051.452. However, rather than merely tracking the statutory language the Board proposes to more exactly detail the relevant factors which it and the Executive Director will evaluate and includes consideration of the public welfare, evaluating any harm resulting from sanctioned conduct (not simply 'economic harm'), taking into account both the specific and general deterrent value of a penalty and whether or not the Respondent has taken prompt remedial action. These changes provide greater notice to those who are subject to the Board's jurisdiction of the criteria which will be used to determine an administrative penalty and serve to prevent the Executive Director or the Board from the unbridled exercise of authority.
Cathy L. Hendricks, Executive Director, Texas Board of Architectural Examiners, has determined that for the first five-year period the amended rules are in effect there will be no fiscal implications to state or local governments.
Ms. Hendricks also has determined that for the first five-year period the amended rules are in effect the public benefits which will be realized are more efficient resolution of contested cases without any loss of due process rights and more certain criteria upon which administrative penalties may be assessed and evaluated. The rules will not have any impact on small businesses and there will be no change in cost to those persons required to comply with the proposed changes.
Comments may be submitted to Cathy L. Hendricks, RID, Executive Director, Texas Board of Architectural Examiners, P.O. Box 12337, Austin, TX 78711-2337.
The amendments are proposed pursuant to Texas Occupations Code Annotated, §1051.202 which authorizes the Board to adopt reasonable rules to administer and enforce Subtitle B of the Architects' Practice Act including rules regulating and enforcing the Interior Designers' Registration Act, Texas Occupations Code Annotated, Chapter 1053.
The proposed amendments do not affect any other statutes.
§5.174.Initiating a Contested Case.
(a) The Board may initiate a Contested Case proceeding in response to:
(1) a [notarized] written complaint filed
by a member of the public;
(2) information provided in a registration application or renewal form; or
(3) other information known to the Board which establishes probable cause.
(b) The Board shall not act on a written complaint
filed by a member of the public unless the allegations in the complaint[
, if proven,] describe conduct that violates a rule or statutory
provision enforceable by the Board.
(c) (No change.)
[(d) The Board may refuse
to disclose the identity of a person who furnishes information regarding
an alleged violation of a rule or statutory provision enforceable
by the Board.]
(d) [(e)] The Board shall not
act on a written complaint filed by a member of the public if the
complaint is filed later than ten (10) years after the date of the
act(s) or omission(s) described in the complaint.
§5.175.Informal Disposition of a Contested Case.
(a) A Contested Case may be resolved informally at
any time [after the Contested Case is initiated by the Board].
(b) If the respondent agrees in writing to a settlement
agreement [arising out of the proposed informal disposition of
a Contested Case] and the Executive Director executes the written
settlement agreement, the settlement agreement shall be presented
to the Board for approval or rejection. The settlement agreement must
include written findings of fact and conclusions of law and may be
in the form of a consent order, letter of reprimand, or other format
approved by the Executive Director.
(c) - (d) (No change.)
(e) An informal disposition may be made of a Contested
Case by default. Default occurs whenever a respondent neither
answers nor makes other written response to the filing of a Complaint
or Petition at the State Office of Administrative Hearings alleging
a violation of any law or Rule over which TBAE possesses jurisdiction.
Default also occurs if the respondent fails to appear at a scheduled
and properly noticed hearing to be conducted by the State Office of
Administrative Hearings. [Default shall occur when a respondent
neither responds in writing nor appears at a scheduled hearing related
to a disciplinary matter.]
(f) The Board and the Executive Director shall take into account the following factors when considering a proposed settlement agreement:
[(1) the seriousness of
the conduct that is the source of the allegation(s) against the respondent,
including consideration of:]
(1) [(A)] the nature, circumstances,
extent, and gravity of any relevant act or omission; [,
and]
(2) [(B)] the hazard or potential
hazard to the health, safety or welfare [health or
safety] of the public;
(3) [(2)] the economic harm
resulting from the conduct [damage to property caused by
the conduct];
(4) [(3)] the respondent's history
concerning any previous ground for sanction;
(5) [(4)] the severity of penalty
necessary to effectuate specific and general deterrence [
deter a future ground for sanction];
(6) [(5)] any effort by
the respondent to take prompt remedial action [to correct
the ground for sanction];
(7) [(6)] the economic benefit
gained by the respondent as a result of the conduct; [
and]
(8) [(7)] any other matter justice may require; and
(9) [(8)] When considering a
referral from the Texas Department of Licensing and Regulation, in
addition to the factors described in this subsection, the Board shall
consider the actual number of days that the submission was late.
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 May 11, 2009.
TRD-200901794
Cathy L. Hendricks, RID
Executive Director
Texas Board of Architectural Examiners
Earliest possible date of adoption: June 21, 2009
For further information, please call: (512) 305-8544
The Texas Board of Architectural Examiners proposes amendments to §5.177, Publication of Disciplinary Action of Chapter 5, Subchapter I, concerning Disciplinary Action.
The proposed changes to §5.177 is in order to obtain greater clarification concerning the Board's directive that persons who have "received" disciplinary action will have their names published. While this has been the Board's practice it was felt that present language, which requires persons who are "the subject" of disciplinary proceedings to have their names publicized, is overly broad.
Cathy L. Hendricks, Executive Director, Texas Board of Architectural Examiners, has determined that for the first five-year period the amended rule is in effect there will be no fiscal implications to state or local governments.
Ms. Hendricks also has determined that for the first five-year period the amended rule is in effect the public benefit will result from a clearer understanding of the rule. The rule will not have any impact on small businesses and there will be no change in cost to those persons required to comply with the proposed changes.
Comments may be submitted to Cathy L. Hendricks, RID, Executive Director, Texas Board of Architectural Examiners, P.O. Box 12337, Austin, TX 78711-2337.
The amendments are proposed pursuant to Texas Occupations Code Annotated, §1051.202 which authorizes the Board to adopt reasonable rules to administer and enforce Subtitle B of the Architects' Practice Act including the practice of architecture, landscape architecture and interior design.
The proposed amendments do not affect any other statutes.
§5.177.Publication of Disciplinary Action.
(a) The Board shall cause to be published in the Board's
official newsletter, on the Board's Web site, in a newspaper, or in
another publication the name of any person who has received [
is the subject of] disciplinary action by the Board. The publication
may include a narrative summary of the facts giving rise to disciplinary
action and a description of the action taken.
(b) (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 May 11, 2009.
TRD-200901795
Cathy L. Hendricks, RID
Executive Director
Texas Board of Architectural Examiners
Earliest possible date of adoption: June 21, 2009
For further information, please call: (512) 305-8544
The Texas Board of Architectural Examiners proposes amendments to §5.180, Referrals from the Texas Department of Licensing and Regulation; §5.181, Responding to Request for Information; §5.182, Continuing Violation; §5.183, Violation By One Not an Interior Designer; §5.184, Complaint Process, and §5.185, Evaluation of Evidence by Expert of Chapter 5, Subchapter I, concerning Disciplinary Action.
Section 5.180 requires Interior designers to submit certain plans and specifications to the Texas Department of Licensing and Regulation for accessibility review not later than the fifth day after issuance. Architectural Barriers Act, Texas Government Code Annotated §469.101. If an interior designer fails to do so, the TDLR reports the legal violation to the Texas Board of Architectural Examiners. Id., §469.101. The Texas Board of Architectural Examiners will, upon confirmation of a violation, take appropriate disciplinary action in order to further the policy of this state which is to eliminate, to the extent possible, unnecessary barriers encountered by persons with disabilities whose ability to achieve maximum personal independence is needlessly restricted. Texas Occupations Code Annotated §1051.702(2) (West 2005 & Supp. 2008).
The Board proposes minor changes to §5.180 which result in greater certainty regarding the enforcement action which will be taken by directing the Executive Director to issue a written warning upon a first violation and requiring the imposition of an administrative penalty for all subsequent violations.
Section 5.181 requires certain persons to respond to a request for information from the Board. It is the mission of the Texas Board of Architectural Examiners to ensure a safe built environment for Texas. In order to effectively and efficiently investigate and prosecute instances of statutory or regulatory violation it is essential that the Board be able to acquire information expeditiously; the use of investigatory letters as permitted by §5.181 has proven effective in these efforts.
The Board proposes to expand the class of persons who are responsible for responding to letters of inquiry to include candidates and applicants as well as registrants. These persons are often in a position to provide vital information concerning matters within the Board's jurisdictions and relevant to enforcement proceedings. In proposed change will, if adopted, permit agency staff to request that a registrant, candidate or applicant provide records and documents in response to a request.
The proposed changes permit a failure to respond to be treated as a distinct disciplinary infraction from the underlying matter being investigated, and, in order to stress the importance of a candidate's, applicant's or registrant's cooperation with a Board inquiry, state that a failure to respond within 30 days may constitute grounds for the Board to impose suspension or revocation of a registration.
Section 5.182 will be amended to include a new subsection (b) which expressly classifies each sheet of plans and each separate section of specifications which are prepared, modified or issued in violation of applicable statutory and regulatory requirements to constitute discreet and independent legal violations each of which provides a basis for the imposition of an administrative penalty. The Texas Board of Architectural Examiners proposes this addition in recognition of the fact that plans and specifications which are issued in violation of law present an unacceptable risk of significant bodily harm and economic injury to the citizens of Texas. It is anticipated that registrants and nonregistrants will be deterred from issuing plans and specifications in violation of the law.
The amendment to §5.183 brings the rule into conformity with Subtitle B of the Texas Occupations Code as well as the Administrative Procedure Act (Title 10, Texas Government Code) by deleting references to Section 17 of the Interior Designers' Registration Law (Art. 294a, Vernon's Texas Civil Statutes). The rule implements the practice of the Texas Board of Architectural Examiners to refer all contested case hearings to the State Office of Administrative Hearings (SOAH) for issuance of a proposal for decision regardless of whether the case involves a registrant or a nonregistrant. Because the Board no longer conducts contested case hearings, subsection (d)(3), (4) and (5) of the original rule are no longer necessary. In place of procedural rules governing a contested case hearings the proposed rules would set forth the procedural sets to be taken by the Executive Director once an investigation determined that a nonregistrant has engaged in a legal violation including methods of settlement and notification of rights to a hearing at SOAH. The proposed amendment will make it clear that a recommended settlement or other informal disposition presented to the Board by the Executive Director may, but need not be, approved by the Board. This is consistent with well established law that only a Board may act on behalf of the agency in such instances.
The proposed amendment to §5.184 permits the agency to provide a copy of its policies and procedures to a complainant and/or a respondent by providing information which will allow review of the policies on the internet or, if requested by a party, by mailing a copy of the policies and procedures upon request. The changes to §5.184 also establish "probable cause" as the investigatory standard required to proceed with investigation and settlement/prosecution of a disciplinary matter. This standard has a clear legal definition and is readily applicable to agency investigations. This does not, however, diminish the agency's responsibility to prove a case by the customary "preponderance of the evidence" standard when prosecuting cases through contested case proceedings before the State Office of Administrative Hearings. The final substantive change proposed for §5.184 authorizes, but does not require, the Executive Director to respond to a request for reconsideration if a complaint is dismissed because of lack of probable cause to continue the investigation and refer a matter for prosecution.
Section 5.185 requires that any case involving professional competency or honesty be evaluated by an interior designer to ensure that professional standards applicable to the profession be objectively reviewed by a peer prior to the docketing of a case at the State Office of Administrative Hearings. The proposed amendment expands this to include 'candidate' along with registrants or applicants as persons whose conduct may be subject to peer review and strikes as unnecessary the entirety of subsection (c). The Board believes that while the qualifications of an expert are very important to valid and reliable case evaluation, there is no need to establish the thresholds and automatic disqualifications which presently exist.
Cathy L. Hendricks, Executive Director, Texas Board of Architectural Examiners, has determined that for the first five-year period the amended rules are in effect, there will be no fiscal implications to state or local governments.
Ms. Hendricks also has determined that for the first five-year period the amended rules are in effect the public benefits expected as a result of the amended rules are to cause greater compliance by those within the jurisdiction of the agency and to increase efficiencies in acquiring information necessary for thorough investigation and prosecution of enforcement matters. The rules will not have an impact on small businesses.
There will not be a change in the cost to persons required to comply with the sections.
Comments may be submitted to Cathy L. Hendricks, RID, Executive Director, Texas Board of Architectural Examiners, P.O. Box 12337, Austin, TX 78711-2337.
The amendments are proposed pursuant to the Architects' Practice Act, Texas Occupations Code Annotated, §1051.202 which authorizes the Board to adopt reasonable rules as necessary to administer and enforce the Architects' Practice Act, the interior designers' Practice Act and the Interior Designers' Title Act.
§5.180.Referrals from the Texas Department of Licensing and Regulation.
(a) If an Interior Designer fails to submit any document to the Texas Department of Licensing and Regulation as required by the Architectural Barriers Act, or a rule or procedure enacted pursuant to the Architectural Barriers Act, the Board may take disciplinary action against the Interior Designer.
(b) An Interior Designer's failure to submit documents
to the Texas Department of Licensing and Regulation as required by
subsection (a) of this section, shall result in a written warning
from the Executive Director. An administrative penalty shall be imposed
upon second and subsequent failures. [If an Interior Designer
submits a document described by subsection (a) of this section no
more than fifteen (15) days following the deadline for submission
of the document, the Executive Director may issue an informal reprimand
to the Interior Designer. It shall not be necessary for the informal
reprimand to be presented to or approved by the Board.]
(c) When considering potential disciplinary action,
including imposition of an administrative penalty [pursuant
to subsection (a) of this section], the Board and the Executive
Director shall take into account the number of previous incidents
involving a registrant's failure to timely submit documents to the
Texas Department of Licensing and Regulation and the length of the
delay in making the present submission. [the factors listed
in Subsection 5.175(f) of this subchapter.]
§5.181.Responding to Request for Information.
An Interior Designer, a Candidate or an Applicant shall
answer an inquiry or produce requested documents to the Board concerning
any matter under the jurisdiction of the Board within thirty (30)
days after the date the person [Interior Designer]
receives [notice of] the inquiry. Failure [An
Interior Designer's failure] to respond within thirty (30) days
may [to an inquiry concerning any matter under the jurisdiction
of the Board shall] constitute a separate violation subject
to disciplinary action by the Board up to and including suspension
or revocation of a registration.
§5.182.Continuing Violation.
(a) Each day a violation of any statutory provision or rule enforced by the Board occurs or continues may be considered a separate violation subject to disciplinary action by the Board.
(b) Each sheet of interior design plans and each separate section of the specifications which are prepared, modified or issued in violation of these rules or any laws over which the Board has jurisdiction shall each be considered an independent violation of applicable rules and laws.
§5.183.Violation By One Not an Interior Designer.
(a) A person who is not an Interior Designer who violates
any of the laws or rules over which the Board has jurisdiction
is [title restrictions of the Interior Designers' Registration
Law may be] subject to any or all of the following:
(1) judicial proceedings for injunctive relief; [
injunctive action;]
(2) criminal prosecution in a court of appropriate
jurisdiction; [and/or]
(3) imposition of an administrative penalty; [.]
(4) issuance of a cease and desist order from the Board.
(b) In taking action against a person who is not an Interior Designer, the Board may be represented by agency staff, the Texas Attorney General, by a county or district attorney, or by other counsel as necessary.
(c) The Executive Director may recommend and the Board
may, after notice and an opportunity for hearing, impose
an administrative penalty in the manner prescribed in Subchapter
I of the Architects' Practice Act and otherwise as permitted by law
and Board rules. [Section 17 of the Interior Designers'
Registration Law.]
(d) A person charged with a violation may request a hearing to contest a proposed administrative penalty that has been recommended by the Executive Director:
(1) A request for a hearing must be received in the Board's office no later than the 20th day after the date the person receives notice that the Executive Director has recommended the imposition of an administrative penalty.
(2) The hearing shall be conducted by an Administrative
Law Judge at the State Office of Administrative Hearings under provision
of the Administrative Procedure Act, Texas Government Code Annotated,
Chapter 2001, and this subchapter. [The Board shall preside
over a hearing held pursuant to this section. The Board shall send
notice of the date, time, and location of the hearing to the person
charged with a violation. During the hearing, the Board's staff and
the person charged with a violation or the person's authorized representative
shall have the opportunity to present testimony and other evidence
and make legal arguments regarding the alleged violation and the amount
of the proposed administrative penalty.]
[(3) During a hearing on
a proposed administrative penalty, the Board shall have the authority
and duty to:]
[(A) conduct a full, fair, and impartial hearing;]
[(B) take action to avoid unnecessary delay in the disposition of the proceeding;]
[(C) maintain order; and]
[(D) regulate the conduct of the parties and their authorized representatives, including the authority and duty to limit irrelevant, immaterial, and unduly repetitious testimony and reasonably limit the time for presentations.]
[(4) After a hearing on
a proposed administrative penalty, the Board's chair shall issue a
written order stating the Board's findings regarding the occurrence
of a ground for sanction and the amount of the penalty, if any. In
determining the amount of the penalty, if any, the Board shall consider
the factors listed in Subsection 17(g) of the Interior Designers'
Registration Law.]
[(5) The Board may stop
a hearing on a proposed administrative penalty in order to consult
privately with legal counsel regarding any matter related to the hearing.]
(e) If a person charged with a violation agrees to
a proposed administrative penalty recommended by the Executive Director,
the Board may [shall] approve the Executive
Director's recommendation and order payment of the proposed penalty
without a hearing.
(f) Within thirty (30) days after the date on which
the Board's order imposing an administrative penalty or taking
other final agency action in a contested case proceeding becomes
final, the person charged must pay the administrative penalty and
otherwise ensure compliance with the terms set forth in the Board's
Final Order [in full] or file a petition for judicial
review with a district court in Travis County as provided by Subchapter
G, Chapter 2001, Government Code.
(g) If the Executive Director determines that a Nonregistrant is violating, or has violated, a statutory provision or rule enforced by the Board, the Executive Director may:
(1) issue to the Nonregistrant a written notice describing
the alleged violation and the Executive Director's intention [
intent] to request that the Board impose administrative
penalties and issue a cease and desist order. The written
notice shall offer the Nonregistrant an opportunity to resolve all
matters contained in the written notice by means of an agreed order
or other instrument deemed appropriate by the Executive Director and
of the Nonregistrant's ability to request an informal conference as
well as of his or her right to request a hearing before an Administrative
Law Judge at the State Office of Administrative Hearings; and
[offering an opportunity for a hearing regarding the alleged
violation pursuant to Section 1051.504 of the Texas Occupations Code.]
[(2) request that the Board,
after providing an opportunity for a hearing as described in subsection
(g)(1) of this section, issue a cease and desist order to the Nonregistrant
prohibiting the Nonregistrant's misconduct; and]
(2) [(3)] take any other action
and impose any other penalty described in this section or permitted
[provided] by [other] law.
§5.184.Complaint Process.
(a) - (b) (No change.)
(c) Once a complaint has been received, the Board's enforcement staff shall:
[(1) provide the complainant
and respondent with copies of the Board's policies and procedures
regarding complaint investigation and resolution;]
(1) [(2)] conduct a preliminary
evaluation of the complaint within thirty (30) days to determine:
(A) Jurisdiction: whether the complaint provides information sufficient to establish probable cause for the Board's staff to believe an actionable violation might have occurred;
(B) Disciplinary History: whether there has been previous enforcement activity involving the person against whom the complaint has been filed; and
(C) Priority Level: the seriousness of the complaint relative to other pending enforcement matters;
(2) provide the complainant and respondent with information which will permit review of the Board's policies and procedures from the Board's web site regarding complaint investigation and resolution. If the complainant or respondent requests a copy of the policies and procedures in written format a copy shall be mailed upon request.
(3) notify the complainant and respondent of the status of the investigation at least quarterly unless providing notice would jeopardize an investigation; and
(4) maintain a complaint file that includes at least:
(A) the name of the person who filed the complaint unless the complaint was filed anonymously;
(B) the date the complaint was received by the Board's staff;
(C) a description of the subject matter of the complaint;
(D) the name of each person contacted in relation to the complaint;
(E) a summary of the results of the review and investigation of the complaint; and
(F) an explanation for the reason the complaint was dismissed if the complaint was dismissed without action other than the investigation of the complaint.
(d) - (e) (No change.)
(f) If the Board's staff proceeds with an investigation, the staff shall:
(1) investigate the complaint according to the priority level assigned to the complaint;
(2) notify the complainant and respondent that, as a result of the staff's preliminary evaluation of the complaint, the staff has determined that the Board has jurisdiction over the allegations(s) described in the complaint and has decided to proceed with an investigation of the allegation(s) against the respondent; and
(3) gather sufficient information and evidence to determine whether there is probable cause to believe that a violation of a statutory provision or rule enforced by the Board has occurred.
(g) (No change.)
(h) If the information and evidence gathered during
an investigation are insufficient to establish probable cause
to believe [prove] that a violation has occurred,
the Board's staff shall:
(1) dismiss the complaint;
(2) send notices to the complainant and respondent regarding the dismissal;
(3) if warranted, include in the respondent's notice a recommendation or warning regarding the respondent's future conduct; and
(4) if a complaint is determined to be unfounded, state in the respondent's notice that no violation was found.
(i) If the information and evidence gathered during
an investigation are sufficient to establish probable cause to
believe [prove] that a violation has occurred, the
Board's staff shall:
(1) seek to resolve the matter pursuant to §§5.175,
5.176 [section 5.175] or 5.183 of this subchapter; or
(2) issue a warning to the respondent if the violation is the respondent's first violation and:
(A) the respondent has not received a written warning
or advisory notice from the Board [regarding the law's restrictions
which was directed to the respondent];
(B) the respondent provided a satisfactory remedy which
has [that alleviated or] eliminated any harm or threat
to the health or safety of the public; and
(C) the guidelines for determining an appropriate penalty for the violation recommend an administrative penalty or a reprimand as an appropriate sanction for the violation.
(j) (No change.)
(k) If a complaint is dismissed, the complainant may submit to the Executive Director a written request for reconsideration. The written request must explain why the complaint should not have been dismissed. The Executive Director may, but is not required to, respond to the request for reconsideration.
§5.185.Evaluation of Evidence by Expert.
(a) If the Board's staff determines that a respondent
who is a Registrant, Candidate, or Applicant appears to
have engaged in the Practice of Interior Design [acted]
in a manner that was Reckless, Grossly [reckless, grossly] incompetent, or dishonest, the matter may not be docketed at [
presented to the Board or referred to] the State
Office of Administrative Hearings for a formal hearing unless the
evidence and information gathered during the investigation have been
reviewed by a member of the Board or the Board's staff or a consultant
who is registered as an Interior Designer.
(b) The purpose of the review [described in subsection
(a) of this section] shall be to confirm, prior to the commencement
of formal disciplinary proceedings, that the respondent's professional
conduct did not satisfy the requisite standard of care which
should be applied by a reasonably prudent Interior Designer under
similar circumstances.
[(c) In order to act as
a consultant for the purposes of subsection (a) of this section, a person must:]
[(1) have been actively registered as an Interior Designer for at least five (5) years;]
[(2) have significant experience in the area(s) relevant to the issue(s) to be considered by the consultant; and]
[(3) not have been the subject of disciplinary action by the Board at any time.]
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 May 11, 2009.
TRD-200901796
Cathy L. Hendricks, RID
Executive Director
Texas Board of Architectural Examiners
Earliest possible date of adoption: June 21, 2009
For further information, please call: (512) 305-8544
The Texas Board of Architectural Examiners proposes amendments to §5.187, Administrative Penalty Schedule, and §5.188, Reinstatement Following Suspension or Revocation, of Chapter 5, Subchapter I, concerning Disciplinary Action.
The Texas Board of Architectural Examiners ("Board") is responsible for enforcing the Architects' Practice Act, Texas Occupations Code Annotated §§1051.001 - 1051.701 (West 2004 & Supp. 2008). Upon a finding that disciplinary action is warranted the Board is permitted by statute to impose administrative penalties as well as suspend or revoke the certificate of registration of a registered interior designer. Id., §1051.451, §1051.751. In conjunction with this authority the Board is required by statute to adopt an administrative penalty schedule and may reinstate a certificate of registration which has been suspended or revoked. Id., §1051.403, §1051.452(c).
The Board proposes changers to the present administrative penalty schedule for violations of the Architects' Practice Act as set forth in §5.187 and to amend §5.188. The proposed changes to §5.188 will implement statutory language which permits the board to assess "all fees and costs incurred by the Board as the result of any proceeding that led to the denial, revocation or suspension [of the certificate of registration]." Texas Occupations Code Annotated §1051.403(1) (West 2004 & Supp. 2008).
The newly stated purpose of the penalty schedule found in §5.187 is to "guide the Board's assessment of an appropriate administrative penalty." The Texas Board of Architectural Examiners recognizes that uniformity in the application of a penalty schedule is necessary to ensure that similar situated individuals are treated in a consistent manner and to thereby avoid even the appearance of unbridled agency discretion.
Equally important, however, is the Board's recognition that each case must be evaluated based upon the unique facts and the underlying equities of any given situation. In order to treat similarly situated individuals in a consistent manner the proposed rule incorporates concrete criteria and finite rages of penalty in conjunction with a recognition that the regulatory criteria are to "guide the Board's assessment" rather than compel the imposition of a specific administrative penalty.
The administrative penalty schedule presently classifies violation(s) as "minor", "moderate" or "major." The proposed amendments would continue this classification system, add clarifying language and allow consideration of relevant factors which are not expressly set forth in the rule as it now exists but which the Board feels to be significant for determining an appropriate administrative penalty for each of the three classifications. Making these criteria express will give notice of those factors upon which the Board will place primary reliance.
The proposed amendments will increase the penalties which the Board may impose within each of the three classifications and expand the type of legally recognized harm which the Board may consider beyond simply "economic damage to property" to include the broader concept of "monetary loss to the project owner or other involved persons and entities" as well as other "economic injury."
The resulting administrative penalty associated with each of the three classifications has been increased. A minor violation may result in an administrative penalty of not more than $500.00. Previously the amount was $350.00. A moderate violation may result in an administrative penalty of not more than $2,000.00. Previously a moderate violation was subject to a penalty of between $351.00 and $1,200.00. A major violation may not exceed $5,000.00. Many of the criteria, as well as the maximum administrative penalty amount of $5,000.00, reflect statutory language contained at Texas Occupations Code Annotated, §§1051.451 - 1051.452.
These changes reflect enforcement experience encountered by the agency and the need to consider unique circumstances of each case while also serving as a general and specific deterrent to violations. Enforcement history has shown that effective deterrent is as essential to the Board's mission of ensuring a safe built environment as is aggressive investigation and prosecution of legal violations.
The proposed rules would, for three defined types of statutory violations, implement specific penalty ranges for the violations. The Board has determined that these violations present significant risk of injury and are so fundamental to the practice of interior design that they should presumptively be classified as 'major' violations.
The first violation involves the situation in which construction documents for nonexempt work are prepared and/or issued by persons who are not interior designers.
The second specific violation addressed by the proposed rules changes involves the signing and sealing of construction documents by an interior designer who is under a duty to exercise supervision and control over the work of a nonregistrant. "Supervision and Control" is defined in 22 TAC §5.5(50). The Board will evaluate evidence, including correspondence, to ensure that the supervision and control exercised by a registrant over the work of a nonregistrant is active, affirmative and superior rather than passive and subservient during the entire design process.
The third violation which will be presumed to be a 'major' violation for calculation of an administrative penalty results from failure to respond to a Board inquiry made under authority of 22 TAC §5.181.
The Board has determined that the risk to the health, safety and welfare of citizens is always put at an unacceptable risk of harm when persons who lack the education, training and experience of registered interior designers engage in the practice of interior design and it therefore possesses a compelling interest in deterring and sanctioning the unauthorized practice of interior design. This interest is furthered by a presumption that unauthorized practice is always a 'major' violation.
The Board has, within the proposed rule change, made it clear that each individual document and separately numbered section of the interior design specifications prepared by a nonregistrant will be treated as a separate violation. As an example, an unregistered person who prepares and issues five (5) sheets of interior design plans in violation of the Architects' Practice Act will be considered to have engaged in five (5) separate legal violations each of which may be classified as a "major" administrative penalty, i.e., warranting a penalty up to $5,000.00 or, under these facts, $25,000 in the aggregate.
It is the expectation of the Board that significant deterrent value will be recognized from the combined effect of the proposed changes to §5.187 and that acquisition of information in response to Board inquiry made under authority of §5.187 will become more efficient and effective for the prompt investigation of cases.
The Board has also determined that the failure of a registrant to actively and affirmatively exercise "supervision and control" over the work of a nonregistrant when such a duty exists likewise presents unacceptable risks of harm and, for the same policy reasons as detailed above, has classified such a failure as a "major" violation. Similarly, each sheet of interior design plans and separately numbered section of the specifications will be deemed separate violations.
The efficient investigative functions of the Board requires that accurate information be provided when sought under authority of 22 TAC §5.181. The proposed rule change would place a failure to timely respond within the administrative penalty schedule as a "moderate" violation if the response is received within 60 days of receipt of the inquiry or, to put it differently, if the response is no more than 30 days late. However, any delay beyond 30 days is considered a "major" violation with each 15 day period constituting a separate penalty.
The proposed changes to the administrative penalty schedule would add content which strengthens the enforcement mechanisms available to TBAE and gives more precise notice to stakeholders and other interested parties of which criteria will be evaluated in order to (a) classify a violation as "minor", "moderate" or "major" and (b) the consequences of such classification.
The Board believes that there will be substantial deterrent effect resulting from adoption of the proposed changes to §5.187 attributable to increased compliance by those under the agency's jurisdiction.
The Board also proposes to change §5.188 which addresses the reinstatement of a registrant after his or her certificate of registration has been suspended or revoked. The proposed change is based upon the statutory language found in Texas Occupations Code Annotated, §1051.403(1) (West 2004 & Supp. 2008) (Board may assess "all fees and costs incurred by the Board as the result of any proceeding that led to the denial, revocation or suspension [of the certificate of registration].") The proposed change makes clear that the Board, as a condition of issuance or reissuance of a certificate of registration, may require that attorney's fees and other costs directly associated with a prior contested case proceeding resulting in "the denial, revocation or suspension" of a registration be paid to the agency.
Those who seek to have their certificates of registration reinstated will be now be aware that the privilege of reinstatement will require, among other things reimbursement to the agency. This is not a rule which seeks to impose attorney's fees and related costs by the prevailing party but, rather, a condition precedent to the reinstatement of a certificate of registration which was suspended or revoked through contested case proceedings.
Cathy L. Hendricks, Executive Director, Texas Board of Architectural Examiners, has determined that for the first five-year period the amended rules are in effect, there will be no fiscal implications to state or local governments. While penalties may be increased to serve the desired deterrent purposes the number of violations will decrease.
Ms. Hendricks also has determined that for the first five-year period the amended rules are in effect the public benefits expected as a result of the amended rule are to cause greater compliance by those within the jurisdiction of the agency and to increase efficiencies in acquiring information necessary for thorough investigation and prosecution of enforcement matters. The rules will not have an impact on small businesses.
There will not be a change in the cost to persons required to comply with the sections except that those individuals who have had their certificates of registration revoked or suspended by previous contested case proceedings will be required to pay the fees and costs arising out of those proceedings.
Comments may be submitted to Cathy L. Hendricks, RID, Executive Director, Texas Board of Architectural Examiners, P.O. Box 12337, Austin, TX 78711-2337.
The amendments are proposed pursuant to the Architects' Practice Act, Texas Occupations Code Annotated, §§1051.001 - 1051.701.
The proposed amendments do not affect any other statutes.
§5.187.Administrative Penalty Schedule.
If the Board determines that an administrative penalty is the
appropriate sanction for a violation of any of the statutory provisions
or rules enforced by the Board, the following guidelines shall be
applied to guide the Board's assessment of an appropriate [
determine the amount of the] administrative penalty:
(1) The Board shall consider the following factors to determine whether the violation is minor, moderate, or major:
(A) Seriousness of misconduct and efforts to correct the ground for sanction:
(i) Minor--the respondent has demonstrated that he/she was unaware that his/her conduct was prohibited and unaware that the conduct was reasonably likely to cause the harm that resulted from the conduct or the respondent has demonstrated that there were significant extenuating circumstances or intervening causes for the violation; and the respondent has demonstrated that he/she provided a satisfactory remedy that alleviated or eliminated any harm or threat to the health or safety of the public.
(ii) Moderate--the violation shows that the respondent knowingly disregarded a standard or practice normally followed by a reasonably prudent person under the same or similar circumstances. A violation of a Board order shall constitute, at a minimum, a moderate violation.
(iii) Major--the conduct [this is a
violation of an order of the Board or a violation that] demonstrates
gross negligence or recklessness or resulted in a threat to the
health or safety of the public and the respondent, after being notified
of the alleged violation intentionally refused or failed to take prompt
and remedial action. [; or the conduct posed a serious
threat to the health or safety of the public; or, after being notified
of the alleged violation and the harm or threat to the health or safety
of the public, the respondent intentionally refused or failed to provide
an available remedy to alleviate or eliminate the harm or threat to
the health or safety of the public.]
(B) Economic harm: [damage to property:]
(i) Minor--there was no apparent economic damage to property or monetary loss to the project owner or other involved persons and entities.
(ii) Moderate--economic damage to property or monetary harm to other persons or entities did not exceed $1,000, or damage exceeding $1,000 was reasonably unforeseeable.
(iii) Major--economic damage to property or economic injury to other persons or entities exceeded $1,000.
(C) Sanction history:
(i) Minor--[this is the first time an administrative
penalty or other sanction has been imposed against the respondent,
and] the respondent has not previously received a written warning
, [or] advisory notice or been subject to other
enforcement proceedings from the Board [regarding the law's
restrictions which was directed to the respondent].
(ii) Moderate--[this is the second time an administrative
penalty or other sanction has been imposed against the respondent;
or] the respondent was previously [was]
subject to an order of the Board or other enforcement proceedings
which resulted in a finding of a violation of the laws or rules over
which the TBAE has jurisdiction. [through which the Board
could have imposed an administrative penalty; or the respondent previously
received a written warning or advisory notice from the Board regarding
the law's restrictions which was directed to the respondent.]
(iii) Major--the respondent has received at least
two prior written notices or has been subject to two disciplinary
actions for violation of the rules and laws over which the TBAE has
jurisdiction. [this is at least the third time an administrative
penalty or other sanction has been imposed against the respondent
or the respondent has been subject to an order of the Board through
which the Board could have imposed an administrative penalty.]
(2) After determining whether the violation is minor, moderate, or major, the Board shall impose an administrative penalty as follows:
(A) Minor violations--if the violation is minor in
every category described in paragraph [subsection]
(1) of this section, an administrative penalty of not more than
$500 [$350] shall be imposed.
(B) Moderate violations--if the violation is moderate
in any category described in paragraph [subsection]
(1) of this section, an administrative penalty of not [less than
$351 and not] more than $2,000 [$1,200]
shall be imposed.
(C) Major violations--if the violation is major in
any category described in paragraph [subsection]
(1) of this section or if the Board determines that the facts of the
case indicate a higher penalty is necessary in order to deter similar
misconduct in the future, an administrative penalty of [not less
than $1,201 and] not more than $5,000 shall be imposed.
(D) Because of the threat to human health, safety and well-being which necessarily arises from a nonregistrant representing himself or herself to be registered as an Interior Designer the Board possesses a compelling interest in ensuring that only those persons who are permitted by statute and rule to use the title "interior designer" or to offer "interior designer" services do so. If the evidence establishes that a person not registered as an interior designer has represented himself or herself as a registrant or has offered "interior design" services, the violation shall be classified as a major violation and each sheet of interior design plans or separate section of the specifications shall be considered a separate violation for purposes of calculating and imposing administrative penalties.
(E) The agency is responsible for protecting the public's health, safety and welfare by interpreting and enforcing the Interior Designers' Title Act. In fulfilling this statutory duty the Board depends upon, and expects, that registrants, Candidates and Applicants will provide complete, truthful and accurate information to the Board upon request. This prompt and accurate provision of information is essential to protecting the public's health, safety and welfare.
(F) An Interior Designer, a Candidate, or an Applicant who fails, without good cause, to provide information to the Board under provision of §5.181 of this subchapter (relating to Responding to Request for Information) is presumed to be interfering with and preventing the Board from fulfilling its responsibilities. For these reasons a violation of §5.181 of this subchapter shall be considered a moderate violation if a complete response is received within 30 days after receipt of the Board's written inquiry. Any further delay constitutes a major violation. Each 15 day delay thereafter shall be considered a separate violation of these rules.
(3) In order to determine the appropriate amount in
a penalty range described in paragraph [subsection]
(2) of this section, the Board shall consider the factors described
in paragraph [subsection] (1) of this section.
(4) If the facts of a case are unique or unusual, the Board may suspend the guidelines described in this section.
§5.188.Reinstatement Following Suspension or Revocation.
If the Board suspends or revokes a person's certificate of registration as a result of disciplinary action, the person may not reinstate the certificate of registration or obtain a new certificate of registration unless the person:
(1) demonstrates that he/she has taken reasonable steps to correct the misconduct or deficiency that led to the suspension or revocation;
(2) demonstrates that reinstatement or issuance of the certificate of registration is not inconsistent with the Board's duty to protect the public by ensuring that Registrants are duly qualified and fit for registration; and
(3) pays all fees and costs incurred by the Board as a result of any proceeding that led to the suspension or revocation. This shall include, but not be limited to, attorney's fees and all costs associated with the need to prosecute a Contested Case proceeding at the State Office of Administrative Hearings and subsequent activities including administrative and judicial appeals.
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 May 11, 2009.
TRD-200901797
Cathy L. Hendricks, RID
Executive Director
Texas Board of Architectural Examiners
Earliest possible date of adoption: June 21, 2009
For further information, please call: (512) 305-8544