EMERGENCY RULES An agency may adopt a new or amended section or repeal an existing section on an emergency basis if it determines that such action is necessary for the public health, safety, or welfare of this state. The section may become effective immediately upon filing with the Texas Register, or on a stated date less than 20 days after filing and remaining in effect no more than 120 days. The emergency action is renewable once for no more than 60 additional days. Symbology in amended emergency sections. New language added to an existing section is indicated by the use of bold text. [Brackets] indicate deletion of existing material within a section. TITLE 22. EXAMINING BOARDS Part XXI. Texas State Board of Examiners of Psychologists Chapter 466. Procedure 22 TAC sec.sec.466.1-466.43 The Texas State Board of Examiners of Psychologists adopts new sec.sec.466. 1- 466.43 on an emergency basis. These emergency rules are effective immediately for no more than 120 days after publication in the Texas Register. The new sections are necessary to more effectively regulate the practice of psychology and to implement the requirements of Senate Bill 1424 by the 73rd Legislature of Texas. The emergency rules establish procedures for the orderly and efficient disposition of complaints before the Texas State Board of Examiners of Psychologists. New sec.sec.461.1-466.43 establish guidelines for the institution, conduct, informal disposition and hearing of contested cases. The new sections provide the complainant and the licensee or certificand an opportunity to be heard and require the presence of an attorney to advise the Board or Board's employees. The Texas State Board of Examiners of Psychologists is mandated by the Legislature to determine the qualifications of persons offering to perform psychological services and to protect the public against exploitation and injury at the hands of the unqualified and unscrupulous. The fact that there currently exist no rules for the institution, conduct, informal disposition and hearing of complaints received by the Texas State Board of Examiners of Psychologists creates a universal peril to the health, safety and welfare of the public, thus necessitating the emergency adoption of new sec.sec.461.1-466.43. The sections are adopted under the Psychologists' Certification and Licensing Act, sec.8(a) and sec.25C(a)(1), (2), and Texas Government Code, sec.2001.004(1). Section 8(a) of the Psychologists' Certification and Licensing Act provides the Board with authority to promulgate rules in accordance with the Constitution and Laws of this State. Section 25C(a)(1) and (2) require the Board to adopt rules governing informal disposition and proceedings before the Board. Texas Government Code, sec.2001.004(1), authorizes and requires each state agency to adopt rules of practice setting forth the nature and requirements of all available formal and informal procedures. The new sections establish procedure in informal proceedings and contested cases before the Texas State Board of Examiners of Psychologists. sec.466.1. Objective and Scope. The objective of these sections is to obtain a just, fair and equitable disposition of any matter within the jurisdiction of the Board. To the end that this objective may be attained with the greatest expedition and at the least expense possible to the parties and the State, these sections shall be given a liberal construction. Except as provided by other applicable law, these sections govern the procedure for the institution, conduct and determination of proceedings before the Board. These sections do not apply to matters related solely to the internal personnel rules and practices of this agency. The provisions of the Psychologists' Certification and Licensing Act govern where ambiguity or differences exist between these sections and the Act. The provisions of these rules govern when in conflict with the Rules of the State Office of Administrative Hearings unless otherwise stated by law. sec.466.2. Definitions. The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise. Act-The Psychologists' Certification and Licensing Act, Texas Civil Statutes Article 4512c. Administrative law judge-An individual appointed by the Chief Administrative Law Judge of the State Office of Administrative Hearings under Texas Civil Statutes, Article 6252-13f, sec.3, and all amendments thereafter. Agency-The Board and all divisions, departments and employees thereof. Applicant or petitioner-A party seeking a license or rule from the Board. Board-The nine-member Texas State Board of Examiners of Psychologists. Board member-One of the members of the Board, appointed pursuant to the Act, sec.4, and qualified under the Act, sec.5. Chair-The chairperson of the Board. Chief clerk-The chief clerk of the Board. Contested case -A proceeding, including, but not restricted to licensing and disciplinary action in which the legal rights, duties or privileges of a party are to be determined by the Board after an opportunity for an adjudicative hearing. Executive director -The executive director of the Board designated in accordance with the Act, sec.7(b). License-The whole or part of any agency permit, certificate, approval, registration, or similar form of permission required by law. Licensing-The agency process respecting the granting, denial, renewal, revocation, suspension, annulment, withdrawal or amendment of a license. Official act-Any act performed by the Board pursuant to a duty, right or responsibility imposed or granted by law. Party-Each person or agency named or admitted as a party. Person-Any individual, partnership, corporation, association, governmental subdivision or public or private organization of any character other than an agency. Pleading-Any written petition, answer, motion, or other written instrument filed with the Board with respect to a contested case. Presiding officer -The chair, the acting chair of the Board, or a duly authorized administrative law judge while acting with respect to a hearing. Register-The Texas Register. Rule-Any agency statement of general applicability that implements, interprets or prescribes law or policy, or describes the procedure or practice requirements of the agency. The term includes the amendment or repeal of a prior rule, but does not include statements concerning only the internal management or organization of the agency and not affecting private rights or procedures. sec.466.3. Construction. (a) A provision of a section referring to the Board is construed to apply to the Board or the chair if the matter is within the jurisdiction of the Board. (b) Unless otherwise provided by law, any duty imposed on the Board may be delegated to a duly authorized representative. In such case, the provisions of any section referring to the Board or the chair shall be construed to also apply to the duly authorized representative. (c) These sections shall not be construed so as to enlarge, diminish, modify or alter the jurisdiction, powers, or authority of the Board or the substantive rights of any party. sec.466.4. Records of Official Action. All official acts of the Board shall be evidenced by a recorded or written record. The minutes of the Board shall constitute a written record. Official action of the Board shall not be bound or prejudiced by any informal statement or opinion made by any member of the Board or the employees of the agency. sec.466.5. Conduct and Decorum. (a) Parties, authorized representatives, witnesses, and other participants in Board proceedings shall conduct themselves with proper dignity, courtesy, and respect for the Board, the executive director, the administrative law judge, and all other participants. Disorderly conduct will not be tolerated. (b) All authorized representatives shall observe the standards of ethical conduct prescribed for their professions. (c) A violator of this rule may be excluded from the proceeding by the presiding officer for such period as is just and may be subject to such other reasonable and lawful disciplinary action as the Board may prescribe. sec.466.6. Computation of Time. (a) In computing any period of time prescribed or allowed by these sections, order of the Board, or any applicable statute, the period shall begin on the day after the act, event or default in controversy and on the first day of such computed period, unless it be a Saturday, Sunday, or legal holiday, in which event the period runs until the end of the next day which is neither a Saturday, Sunday or a state-recognized holiday. (b) Unless otherwise provided by statute, the time for filing any document may be extended by agreement of the parties or order of the presiding officer upon written motion duly filed prior to the expiration of the applicable time period, showing good cause for an extension of time and stating that the need therefor is not caused by the neglect, indifference or lack of diligence of the movant. A copy of any such motion shall be served upon all other parties of record to the proceeding contemporaneously with the filing thereof. sec.466.7. Agreement to be in Writing. No stipulation or agreement between the parties or their representatives with regard to any matter involved in any proceeding before the Board shall be enforced unless it shall have been reduced to writing and signed by the parties or their authorized representatives, or unless it shall have been dictated into the record by them during the course of a hearing, or incorporated in an order bearing their written approval. This section does not limit a party's ability to waive, modify, or stipulate any right or privilege afforded by these sections, unless precluded by law. sec.466.8. Pleadings. (a) Pleadings shall be typewritten or printed upon paper 8-1/2 inches wide and 11 inches long with left and right margins at least one inch wide. Exhibits annexed thereto shall be folded to the same size. Reproductions are acceptable, provided all copies are clear and permanently legible. The impression shall only be on one side of the paper and shall be double or one and one-half spaced, except that footnotes and lengthy quotations may be single spaced. (b) Pleadings shall state their purpose, contain a concise statement of the facts in support thereof and a prayer for the desired relief. (c) The original of every pleading shall be signed in ink by the party filing the document or by his or her representative. Pleadings shall contain the name, address and telephone number of the party filing the document and, if applicable, the attorney's state bar number and telecopier number. The signed original shall be filed with the Board. (d) A certificate of service by the party or representative who files a pleading, stating that it has been served on the other parties, shall be prima facie evidence of such service. The following form of certificate will be sufficient in this connection: "I hereby certify that have I this _______ day of _____, 19___, served copies of the foregoing pleading upon all other parties to this proceeding, by (state manner of service). Signature." Service of pleadings on and by a party shall be as specified in sec.466.11 of this title (relating to Service in Nonrulemaking Proceedings). (e) In a contested case the petition and each pleading shall be numbered with the licensee's license number and the number assigned by the State Office of Administrative Hearings, centered and underscored six lines down from the top of the first page. Double spaced below the numbers shall be the heading as follows: [graphic] (f) All allegations or responses shall be made in numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances; and a paragraph may be referred to by number in all subsequent pleadings, so long as the pleading containing such paragraph has not been superseded by an amendment. Each violation founded upon a separate transaction or occurrence and each response thereto shall be stated in a separate count or defense whenever a separation facilitates the clear presentation of the matters set forth. (g) Any pleading filed pursuant to a Notice of Hearing may be amended up to seven days prior to the hearing. Amendments after that time will be at the discretion of the presiding officer. (h) All documents relating to any proceeding pending before the Board shall be filed with the chief clerk and the State Office of Administrative Hearings. A document is filed with the Board when it is received in the Board office or entered of record in a Board proceeding and is accompanied by the filing fee, if any, required by statute or Board rules. The received date noted on the document shall be considered prima facie evidence of the date of filing. Pleadings received after 5:00 p.m. local time of the Board shall be deemed filed the first day following that is not a Saturday, Sunday or official state holiday. sec.466.9. Docketing. After an application, petition or other document initiating a new proceeding and requiring action by the Board is processed, the executive director or designee shall forward a copy to the State Office of Administrative Hearings. sec.466.10. Notice of Adjudicative Hearing. (a) Notice in a contested case is governed by the Administrative Procedure Act, Government Code, sec.2001.051. (b) Notice shall be served as specified in sec.466. 11 of this title (relating to Service in Nonrulemaking Proceedings). sec.466.11. Service in Nonrulemaking Proceedings. (a) Where service of notice by the Board is required, the Board shall serve in person or by mailing the Notice of Adjudicative Hearing, certified or registered mail, return receipt requested at the last address filed with the Board by the person entitled to receive such notice. (b) Where personal service cannot be made as contemplated in subsection (a) of this section or the licensee's or certificate holder's whereabouts are unknown, then service of notice shall be by publication of the Notice of Adjudicative Hearing in a newspaper of general circulation in the county in which the licensee or certificate holder was last known to have his or her practice for once each week for two consecutive weeks, the last publication to be at least ten days prior to the date of the hearing. Return of the service of notice by publication shall be by publisher's affidavit together with a copy of the published notice which shall be introduced into the record at the hearing. (c) A copy of any document filed by any party in any proceeding subsequent to the institution thereof shall be mailed or otherwise delivered to the other party of record by the filing party. If any party has appeared in the proceeding by an attorney, service shall be made upon such attorney. The willful failure of any party to make such service shall be sufficient grounds for the entry of an order by the presiding officer striking the document from the record. (d) The date of service by the Board is the date of receipt of the certified mailing or personal delivery. sec.466.12. Filing Fees.
    Each application, petition or complaint which is intended to institute a proceeding before the Board shall be accompanied by the filing fee, if any, prescribed by law and these sections. sec.466.13. Notice of Rulemaking Proceedings. In all rulemaking proceedings, the Board shall give notice according to the procedures set forth in the Administrative Procedure Act. This section shall not limit the Board's power to adopt emergency rules as set forth in the Administrative Procedure Act. sec.466.14. Informal Settlement Conference. Prior to the institution of the Board's proceedings to revoke, suspend, annul or withdraw any license or certificate, the Board shall: (1) give notice to the licensee or certificate holder of such proceeding as required by the Administrative Procedure Act, Government Code, sec.2001.054(c); and (2) provide the licensee or certificate holder an opportunity to show compliance with the Act or rules of the Board by inviting the licensee or certificate holder to participate in an informal settlement conference. sec.466.15. Informal Disposition. (a) Pursuant to the Act, sec.25C, and the Administrative Procedure Act, Government Code, sec.2001.054 and sec.2001.056, informal disposition of any complaint or matter relating to the Act or of any contested case may be made by stipulation, agreed settlement, consent order or default. (b) A psychologist assigned by the chair to assist in complaints review may determine that the public interest might be served by attempting to resolve a complaint or other matter pending before the Board through an informal settlement conference prior to a formal disciplinary proceeding. In that event, the matter shall be set by the chief clerk for an informal settlement conference. (c) In the event the consulting psychologist determines that a violation of the Act does not exist, the matter shall be referred to the Complaints Review Committee for disposition. (d) The following procedure shall be followed in informal settlement conferences. (1) One or more members of the Board and/or representatives of the Board shall conduct the settlement conference as the Board's representative, one of which shall be a licensed psychologist. (2) The Board will provide the licensee or certificate holder with written notice of the time, date and place of the settlement conference. Such notification shall inform the licensee or certificate holder of the nature of the allegations; that the licensee or certificate holder may be represented by legal counsel or other representative; that the licensee or certificate holder may offer the testimony of witnesses; that the Board will be represented by one or more of its members and by legal counsel; and that the licensee's or certificate holder's attendance and participation is voluntary. A copy of the Board's rules concerning informal disposition of cases shall be enclosed with the notice of the settlement conference. Notice of the settlement conference, with enclosures, shall be sent by certified mail, return receipt requested, to the last known address of the licensee or certificate holder on file with the Board. (3) Notice of the settlement conference with enclosures, shall be sent by certified mail, return receipt requested to the complainant at his or her current address on file with the Board. The complainant shall be afforded the opportunity to appear and testify or to submit a written statement for consideration at the settlement conference. (4) The settlement conference shall be informal and will not follow the procedure established in this chapter for contested cases or follow the Texas Rules of Civil Evidence. The licensee or certificate holder, his or her representative, representatives of the Board and Board staff and legal counsel may question witnesses, make relevant statements, present affidavits, letters, reports or statements of persons not in attendance and may present such other information as may be appropriate. (5) The Board's representative may call upon the Board's attorney at any time for assistance in conducting the settlement conference and may question any person in attendance. Each participant in the settlement conference shall have an opportunity to make a statement. (6) The Board's representative shall prohibit or limit access to the Board's investigative file and attorney work product to the licensee, certificate holder or complainant. (7) The Board's representative shall exclude from the settlement conference all persons except witnesses during their testimony, the licensee or certificate holder, the licensee's or certificate holder's representative, Board members and Board staff. (8) At the conclusion of the settlement conference, the Board's representative may make recommendations to the licensee or certificate holder for resolution of the issues. Such recommendations may include any disciplinary actions authorized by the Act and Board rules. (9) The licensee or certificate holder may either accept or reject the settlement recommendations proposed by the Board representative. An agreed order shall be drafted by Board counsel as soon thereafter as is practicable and mailed, certified mail, return receipt requested, to the licensee or certificate holder or his or her representative. The licensee or certificate holder shall have ten days after receipt of the agreed order to accept or reject the Board's offer of settlement. Notice of rejection shall be in writing. (10) Following acceptance and execution by the licensee or certificate holder of the agreed order and upon receipt by Board counsel, the order shall be submitted to the full Board at the next regularly scheduled Board meeting for approval or rejection. (11) Upon an affirmative majority vote, the order shall bear the signature of the chair of the Board or the officer presiding at such meeting and shall be included in the minutes of the Board. (12) If the Board does not approve the proposed agreed order, the licensee or certificate holder shall be so informed. The matter shall then be referred back to the Board representative who attended the licensee's or certificate holder's informal settlement conference and Board attorney for consideration of other appropriate action. (13) If the licensee or certificate holder rejects the proposed settlement offered by the Board representative, a formal petition for disciplinary action may be filed by the executive director and the matter referred to the State Office of Administrative Hearings for hearing. sec.466.16. Confidentiality of Informal Settlement Conference. (a) In order to encourage the resolution and early settlement of all contested matters through voluntary settlement procedures, a communication relating to the subject matter made by a licensee or certificate holder while participating in an informal settlement conference before the initiation of formal proceedings, is confidential and may not be used as evidence in any further proceeding. (b) An oral communication or written material used in or made a part of an informal settlement conference is admissible or discoverable if it is admissible or discoverable independent of the conference. (c) If this section conflicts with other legal requirements for disclosure of communications or materials, the issue of confidentiality may be presented to the presiding officer to determine in camera, whether the facts, circumstances and the context of the communications or materials sought to be disclosed warrant a protective order or whether the communications or materials are subject to disclosure. sec.466.17. Prehearing Conference. (a) In a contested case the presiding officer on his or her own motion or on the motion of a party may direct the party or his or her representative to appear at a specified time and place for a conference prior to the hearing for the purpose of: (1) formulating issues; (2) simplifying issues; (3) discussing matters to be officially noticed; (4) discussing the possibility of making admissions of certain averments of fact or stipulations concerning the use by either or both parties of matters of public record such as official records of the Board to the end of avoiding the unnecessary introduction of proof; (5) ruling on any previously filed motions; (6) discussing the procedures at a hearing; (7) discussing the limitation, where possible, of the number of witnesses; and (8) discussing such other matters as may aid in the simplification of the proceedings. (b) Action taken at the conference may be recorded by a court reporter or in an appropriate order as directed by the presiding officer. sec.466.18. Recording of Hearings. Records of hearings shall be made by mechanical or electronic means at the discretion of the presiding officer. sec.466.19. Motions. (a) Any motion filed in a pending proceeding shall: (1) be in writing; (2) set forth the specific grounds and reasons therefor, and the relief sought; (3) be distributed to all parties of record over a certificate of service as outlined in sec.466.8(d) of this title (relating to Pleadings) and sec.466.11 of this title (relating to Service in Nonrulemaking Proceedings); (4) be filed with the presiding officer not less than five days prior to the hearing date; (5) if based on facts or matters which are not of record, be supported by an affidavit; and (6) be ruled on by the presiding officer at a prehearing conference or at the hearing. (b) Motions for continuance or for dismissal of a complaint shall: (1) comply with subsection (a)(1)-(6) of this section; and (2) make reference to all prior motions of the same nature filed in the same proceeding and shall state whether all parties agree to the relief requested. (c) When a complaint has proceeded to its hearing date, pursuant to the notice issued therein, no continuance or dismissal shall be granted by the presiding officer without the consent of all parties involved. (d) Continuances will not be granted based on the need for discovery if discovery requests have not previously been served upon the person from whom discovery is sought, except when necessary due to surprise or discovery of facts or evidence previously undisclosed despite the diligence of the moving party. If the motion is filed less than five days prior to the hearing, the moving party shall immediately notify the official reporter of the disposition of the motion. sec.466.20. Consolidated Hearings.
      A motion for consolidation of two or more applications, petitions or other proceedings shall comply with sec.462.19 of this title (relating to Motions). Proceedings shall not be consolidated unless: (1) the proceedings involve common questions of law and fact; and (2) separate hearings would result in unwarranted expense, delay or substantial injustice. sec.466.21. Place and Nature of Hearing. All hearings conducted in any proceeding shall be open to the public. All hearings shall be held in Austin. sec.466.22. Presiding officer. (a) A presiding officer shall conduct all hearings in accordance with the Administrative Procedure Act, the Act, the rules of this Board, the rules of the State Office of Administrative Hearings and all other applicable law. (b) Except for issuing final orders on the merits or dismissing petitions for disciplinary actions or applications for licensure or certification, the presiding officer shall have broad discretion in regulating the course and conduct of the hearing. The presiding officer shall have the following authority: (1) to hold hearings and issue notices; (2) to administer oaths and affirmations; (3) to direct all parties to enter their appearance on the record; (4) to examine witnesses; (5) to receive evidence; (6) to compel the attendance of witnesses and the production of papers and documents, subject to privileges and exemptions recognized by law; (7) to authorize the taking of depositions, whether oral, telephonic or by video; (8) to rule upon the admissibility of evidence and amendments to pleadings; (9) to limit the number of witnesses whose testimony would be merely cumulative; (10) to set reasonable times within which a party may testify, cross-examine witnesses, or present evidence; (11) to impose sanctions; (12) to recess any hearing; (13) to fix the time for filing of briefs and other documents; (14) to regulate the manner of examination of witnesses to prevent needless and unreasonable harassment, intimidation, expense, inconvenience or embarrassment of any witness or party at a hearing; (15) to remove disruptive individuals; (16) to rule on motions; (17) to issue a proposal for decision, including proposed findings of fact and conclusions of law and a recommended order containing the elements specified in sec.466.36 of this title (relating to Proposals for Decision); (18) to amend the proposal for decision or recommended order or both, based upon exceptions and replies filed by the parties; and (19) to present and explain in person the proposal for decision to the Board for its consideration and final action. sec.466.23. Record. (a) The record in a contested case includes the matters listed in the Administrative Procedure Act, Government Code, sec.2001.060. (b) Proceedings, or any part of them, shall be transcribed on written request of any party. (c) A person requesting a verbatim record shall pay the applicable reporting fees in the Board's court reporting services agreement. (d) The court reporter shall provide the Board the original. (e) Should two or more parties make a request for a verbatim record, the cost shall be borne on a pro rata basis. (f) The court reporter may sell copies of a transcript of a Board proceeding in accordance with the Board's court reporting services agreement, but the Board shall not be precluded from complying with the public's right of access to public information. sec.466.24. Withdrawing the Application. (a) Absent Board authorization or agreement of the parties, an applicant may not withdraw his application without prejudice once the Board has received and taken jurisdiction over the application. (b) An application which has become contested may not be withdrawn except with consent of the parties. The presiding officer will forward the request to withdraw the application and recommendation to the Board. sec.466.25. Discovery. (a) Discovery may be made in a contested case in accordance with the Administrative Procedure Act. (b) Discovery shall be subject to the constraints provided by the Texas Rules of Civil Procedure for privileges, objections, protective orders and duty to supplement as well as the constraints provided in the Administrative Procedure Act. sec.466.26. Evidence. (a) The rules of evidence as applied in nonjury civil cases in the district courts of this state shall be followed. When necessary to ascertain facts not reasonably susceptible of proof under those rules, evidence not admissible thereunder may be admitted, except where precluded by statute, if it is of a type commonly relied upon by reasonably prudent men in the conduct of their affairs. The Board shall give effect to the rules of privilege recognized by law. Opportunity must be afforded all parties to respond and present evidence and argument of all issues involved. (b) Objections to evidentiary offers shall be made and shall be noted in the record. Formal exceptions to rulings of the presiding officer during a hearing shall be unnecessary. It shall be sufficient that the party at the time any ruling is made or sought shall have made known to the presiding officer the action which he or she desires. (c) If evidence is excluded from the record by an exclusionary ruling, the evidence may be included in the record by an offer of proof by the sponsoring party by dictating into the record or submitting in writing the substance of the evidence. An offer of proof shall be sufficient to preserve the evidence for review. (d) Office records of each patient shall have stapled thereto an affidavit in the form approved and furnished by the Board which contains the requisite elements to comply with the Texas Rules of Evidence, sec.902(10)b, relating to form of affidavits. (e) When numerous documents are offered, the presiding officer may limit those admitted to a number which are typical and representative and may, in his or her discretion, require the abstracting of the relevant date from the documents and the presentation of the abstracts in the form of an exhibit; provided, however, that before making such requirement the presiding officer shall require that all parties of record be given the right to examine the documents from which the abstracts were made. sec.466.27. Official Notice.
        The presiding officer may take official notice of all facts judicially cognizable. In addition, the presiding officer may take official notice of any generally recognized facts within the specialized knowledge of the Board. sec.466.28. Protective Orders.
          On motion specifying the grounds and made by any person against or from whom discovery is sought, the presiding officer may make any ruling in the interest of justice necessary to protect the party against whom discovery is sought. Specifically, authority as to such rulings extends to, although is not necessarily limited by, any of the following: (1) ruling that requested discovery not be sought in whole or in part, or that the extent or subject matter of discovery be limited, or that it not be undertaken at the time or place specified; or (2) ruling that the discovery be undertaken only by such method or upon such terms and conditions or at the time and p]ace directed by the presiding officer. sec.466.29. Orders Compelling Discovery Requests. (a) Requests for orders compelling discovery shall contain a statement that, after due diligence, the desired information cannot be obtained through informal means; that good faith efforts at negotiation have failed to produce the requested discovery; and, that good cause exists for requiring discovery. (b) The request for a discovery order may be denied if the request is untimely or unduly burdensome in light of the complexity of the proceeding, if the requesting party has failed to exercise due diligence, if he discovery would result in undue cost to the parties or unnecessary delay in the proceeding, or for other good cause in the interest of justice. sec.466.30. Sanctions. After notice and opportunity for hearing, an order imposing sanctions, as are just, may be issued by the presiding officer for failure to comply with an order, subpoena, or commission. The order imposing sanctions may: (1) disallow any further discovery of any kind or of a particular kind by the disobedient party; (2) require the party, the party's representative, or both to obey the discovery order; (3) require the party, the party's representative, or both to pay reasonable expenses, including attorney fees, incurred by reason of the party's noncompliance; (4) direct that the matters regarding which the discovery order was made shall be deemed established in accordance with the claim of the party obtaining the order; (5) refuse to allow the disobedient party to support or oppose designated claims or defenses or prohibit the party from introducing designated matters into evidence; (6) strike pleadings or parts thereof or abate further proceedings until the order is obeyed; or (7) dismiss the action or proceeding or any part thereof or render a decision by default against the disobedient party. sec.466.31. Board Review of Discovery Orders. Any discovery order or order imposing sanctions issued by the presiding officer is subject to review by an interlocutory appeal to the Board according to the stage of the proceeding. The appeal shall be filed with the Board within five days of the action that is the subject of the appeal. The appeal may be considered by the Board chair within 15 days after filing of the appeal. If the Board chair does not make a ruling on the appeal with 15 days after the filing thereof, then the appeal shall be considered denied and the ruling of the presiding officer shall be considered upheld. sec.466.32. Stipulation. Evidence may be stipulated by agreement of all parties. No stipulation or agreement shall be considered unless it is in writing and signed by the parties or their attorneys, or dictated into the record during the course of the proceeding. This section does not limit a party's ability to waive or modify by stipulation any right or privilege afforded by these rules, unless otherwise precluded by law. sec.466.33. Exhibits. (a) Exhibits to be offered in evidence at a hearing shall be of a size which will not unduly encumber the record. Whenever practicable, exhibits shall conform to the size requirements established by sec.466.8 of this title (relating to Form and Content of Pleadings). The pages of each exhibit shall be numbered consecutively. (b) The original or a true and correct copy of each exhibit offered in evidence shall be identified and tendered for inclusion in the record. Copies of the exhibit shall be furnished to the presiding officer, and to each party at or prior to the time the exhibit is offered in evidence. (c) If an exhibit is identified, objected to, and excluded, the presiding officer may determine whether or not the party offering the exhibit wishes to withdraw the offer; if so, the presiding officer shall permit the return of the exhibit to the party. If the excluded exhibit is not withdrawn, it shall be given an exhibit number for identification, shall be endorsed by the presiding officer with the ruling, and shall be included in the record for the purpose of preserving an exception. sec.466.34. Hearing Procedures. (a) The presiding officer shall open the hearing and make a concise statement of its scope and purposes. Appearances shall then be entered by all parties. Thereafter, parties may make motions or opening statements. (b) Parties shall be permitted to make opening statements, offer direct evidence, cross-examine witnesses, and present supporting arguments. The Board or ;he applicant in a license hearing shall be entitled to open and close. The presiding officer may direct that closing argument be made in writing. The presiding officer may alter the order of procedure if necessary for efficient conduct of the hearing. (c) Voir dire examinations to evaluate the qualifications of a witness to testify may be permitted but will not be substituted for cross-examination. (d) The Board or an applicant in a license hearing may rebut evidence and argument presented by the opposing party. sec.466.35. Oral Argument.
            At the conclusion of the hearing, oral argument may be hard upon request of the parties or upon directive of the presiding officer. Reasonable time limits may be prescribed. The presiding officer may require or accept written briefs in lieu of oral arguments. sec.466.36. Proposals for Decision. (a) When required under the provisions of the Administrative Procedure Act a presiding officer shall file a proposal for decision which shall contain: (1) a summary of the evidence adduced by each party; (2) a statement of the presiding officer's reasons for the proposed decision; (3) findings of fact expressed in clear, concise factual terms, neither summarizing nor reciting the evidence. Findings of fact must be based explicitly on the evidence and on matters officially noticed; (4) conclusions of law necessary to the proposed decision; (5) a listing and explanation of all mitigating and aggravating circumstances necessary to a complete understanding of the case by the Board; and (6) recommended disposition or discipline. (b) When a proposal for decision is prepared, a copy of the proposal shall be served forthwith by the presiding officer on each party, his or her representative, and the Board. Service of the proposal for decision shall be in accordance with sec.466.11 of this title (relating to Service in Nonrulemaking Proceeding). (c) If findings of fact are stated in statutory language, each finding must be accompanied by a concise and explicit statement of the facts supporting the finding. (d) Only when the presiding officer request, a party or parties to submit findings of fact will it be necessary for the presiding officer to rule on each proposed finding in the recommended order. sec.466.37. Exceptions and Replies. (a) Any party of record who is aggrieved by the presiding officer's proposal for decision shall have the opportunity to file exceptions to the proposal for decision within 20 days from the date of service of the proposal for decision. Replies to the exceptions may be filed by other parties within ten days of the filing of the exceptions. Exceptions and replies shall be filed with the presiding officer and the Board. Any extensions of time shall be as provided by sec.466.6 of this title (relating to Computation of Time). (b) The form of exceptions and replies are as specified in sec.466.8 of this title (relating to Pleadings). (c) Each exception or reply to a finding of fact shall be concisely stated and summarize the evidence in support thereof. Arguments shall be logical and citations to authorities shall be complete. (d) Briefs shall be filed only when requested or permitted by the presiding officer. (e) Exceptions and replies shall be served upon every party of record by the filing party pursuant to sec.466.11 of this title (relating to Service in Nonrulemaking Proceedings). sec.466.38. Oral Argument.
              A request for oral argument before the Board nay be incorporated in exceptions, replies to exceptions, motions for rehearing or in separate pleadings, but oral argument shall be allowed during its consideration of a proposal for decision only in the discretion of the Board. sec.466.39. Final Decisions and Orders. (a) The Board may consider the case upon the expiration of ten days after the time for filing of replies to exceptions to the Proposal for Decision. (b) A copy of the decision or order shall be delivered or mailed, certified, return receipt requested to any party and to his or her representative. (c) All final decisions and orders of the Board after consideration of a proposal for decision shall be in writing or stated in the record and signed by the chair or presiding officer. A final order shall including findings of fact and conclusions of law separately stated. (d) As the Board has been created by the legislature to protect the public interest as an independent agency of he executive branch of the government of the State of Texas so as to remain the primary means of licensing and regulating the practice of psychology consistent with federal and state law and to ensure that sound principles of psychology govern the decisions of the Board, it shall hereafter be the policy of the Board to change a finding of fact or conclusion of law or to vacate or modify the proposed order of an administrative law judge when the proposed order is: (1) erroneous; (2) against the weight of evidence; (3) based on unsound principles of psychology; (4) based on an insufficient review of the evidence; (5) not sufficient to protect the public interest; or (6) not sufficient to adequately allow rehabilitation. (e) If the Board modifies, amends or changes the administrative law judge's proposed Order, an order shall be prepared reflecting the Board's changes as stated in the record. sec.466.40. Motions for Rehearing. (a) A motion for rehearing must be filed within 20 days after a party has been notified, either in person or by mail, of the final decision or order of the Board. Replies to the motion for rehearing may be filed within 15 days of the filing of the motion for rehearing. (b) Board action on the motion must be taken within 45 days after the date of rendition of the final decision or order. If Board action is not taken within the 45-day period, the motion for rehearing is overruled by operation of law 45 days after the date of rendition of the final decision or order. The Board may by written order extend the period of time for filing the motions and replies and taking Board action, except that an extension may not extend the period for Board action beyond 90 days after the date of rendition of the final decision or order. In the event of an extension, the motion for rehearing is overruled by operation of law on the date fixed by the order, or in the absence of a fixed date, 90 days after the date of the final decision or order. The parties may be agreement with the approval of the Board provide for a modification of the times provided in this section. (c) An order granting a motion for rehearing vacates the preceding final order. When the Board renders a new final decision, a motion for rehearing directed to the new decision is a prerequisite to appeal. sec.466.41. Costs of Appeal. A party appealing a final decision of the Board in a contested case may be ordered by the Board to pay all or a part of the cost of preparation of the original or a certified copy of the record of the proceeding that is required to be transmitted to the review Court. sec.466.42. Disciplinary Review Panel. A Disciplinary Review Panel, appointed by the Chair of the Board will consist of at least the Executive Director, General Counsel, Investigator, a psychologist licensed by the State of Texas, and a non-psychologist. The Chair of the Board will appoint the Chair of the Panel. The Panel has the authority to offer recommendations to the licensee or certificand for resolution of allegation(s) in an informal settlement conference. sec.466.43. Complaints Review Committee. A Complaints Review Committee, appointed by the Chair of the Board, will consist of at least one psychologist and one non-psychologist. The Committee has the authority to review allegations in order to dismiss or continue the investigations. Issued in Austin, Texas, on January 24, 1994. TRD-9435127 Rebecca E. Forkner Acting Executive Director Texas State Board of Examiners of Psychologists Effective date: January 24, 1994 Expiration date: May 25, 1994 For further information, please call: (512) 835-2036