22 TAC §5.171
The Texas Board of Architectural Examiners adopts an amendment
to §5.171 Disciplinary Action. The proposal to amend this rule was published
in the December 24, 1999 issue of the
Texas Register
(24 TexReg 11683). The amendment is being adopted with change. The
change corrects the spelling of the name of a professional organization in
subsection (b)(4)(B).
The amendment makes it possible for the Board to assess an administrative
penalty against interior designers who are registered in the state of Texas,
provides that the amount of the administrative penalty shall be determined
by the executive director and approved by the Board pursuant to the related
statutory provision, and stipulates that each day a violation occurs or continues
may be considered a separate violation when determining the amount of an administrative
penalty. The amendment is expected to strengthen the Board's ability to enforce
the rules and regulations which are intended to protect the health, safety,
and welfare of the public.
No comments were received concerning this amendment.
The amendment is adopted under Vernon's Texas Civil Statutes,
Article 9102 which requires interior designers to submit plans for accessibility
review; Article 249e (section 15), which provides the Texas Board of Architectural
Examiners with authority to promulgate rules; and Article 249e (section 17)
which authorizes the Board to impose administrative penalties against persons
who violate the provisions of Article 249e.
§5.171.Disciplinary Action.
(a)
The Board may revoke Certificates of Registration for failure
to register annually. Register annually is defined as:
(1)
completing the renewal form completely; and
(2)
remitting the correct amount of renewal fees as described
in Subchapter E of this chapter (relating to Fees). A registrant who has failed
to register annually and has not yet been revoked by Board action will be
categorized as a delinquent registrant.
(b)
Under the authority and provisions of the Regulation of
the Practice of Interior Design (the Act), Subchapter H, the Board may take
disciplinary action against a registrant who is found censurable for a violation
of law, rules, or conduct. In such case, the Board may do any of the following:
(1)
revoke a certificate of registration;
(2)
suspend a certificate of registration;
(3)
probate a suspended registration;
(4)
issue a formal or informal reprimand:
(A)
a formal reprimand will take the form of a Board order;
(B)
an informal reprimand may be no less than an oral or written
admonishment from the Board. All actions of the Board are properly recorded
and available upon request as public information. In addition, all actions
enumerated in this subsection, except an informal reprimand, will be published
in the Board newsletter and transmitted to the National Council for Interior
Design Qualification.
(5)
assess an administrative penalty;
(A)
the amount of the administrative penalty assessed for each
violation shall be determined by the executive director and approved by the
Board as provided by Section 17 of the Act;
(B)
each day that a violation occurs or continues may be considered
a separate violation when determining the amount of an administrative penalty.
(c)
Interior designers must comply with the Texas Department
of Licensing and Regulation's requirements and submit drawings in a timely
manner. The Board may revoke or suspend an interior designer's certificate
of registration; place on probation an interior designer whose registration
has been suspended; reprimand an interior designer; or assess an administrative
penalty in an amount not to exceed $1,000.
(1)
If the facts and circumstances of a TDLR referral appear
to warrant informal disposition by offering the interior designer a consent
order, the executive director, on the advice of staff and legal counsel, may
approve of such offer in lieu of formal action by the Board. The consent order
may include the following provisions:
(A)
the imposition of an administrative penalty in an amount
not to exceed $1,000;
(B)
the imposition of directives that require the interior
designer to implement written policies within the interior designer's practice
that are reasonably designed to prevent subsequent violations of the Architectural
Barriers Act; and/or
(C)
the deferral of the case for a certain period of no more
than one year with the case being finally dismissed at the end of the period
if no new violations of law occur during the period.
(2)
If the executive director approves of a proposed
consent order and the consent order provides for deferral of the case for
a certain period, the interior designer's professional registration shall
remain in good standing for the duration of the period as long as the interior
designer adheres to the terms of the consent order.
(3)
If the executive director approves of a proposed consent
order and the interior designer fails to adhere to the terms of the consent
order, the executive director shall refer the case for formal action by the
Board.
(4)
If a consent order is proposed and either the interior
designer or the executive director fails to approve of the consent order,
the executive director shall refer the case for formal action by the Board.
(5)
The executive director shall not approve of a consent
order if the conduct that is the subject of the consent order occurred after
either of the following:
(A)
the executive director and the interior designer approved
of a consent order in connection with a different referral from the Texas
Department of Licensing and Regulation;
(B)
the Board took action against the interior designer's professional
registration based on a different referral from the Texas Department of Licensing
and Regulation.
(d)
An individual whose registration has expired for nonpayment
of renewal fees is a delinquent registrant of the Board and is subject to
all provisions of the Act and Board rules governing registrants until such
time as registration is revoked by action of the Board.
(e)
In determining disciplinary actions to be taken by Board,
the requirements of Texas Civil Statutes, Article 6252-13c and 6252-13d, as
set out in subsection (i) of this section, will be considered in addition
to any provisions of the Act or Board rules.
(f)
In determining conduct in the practice of interior design
that warrants disciplinary action, the Board will consider, among other things,
professional conduct and conviction of certain crimes as provided in Texas
Civil Statutes, Articles 6252-13c and 6252-13d.
(g)
A registrant alleged to have violated the law, rules, or
standards of conduct will be notified by personal service or by certified
or registered mail of the facts or conduct alleged to be in violation and
shall be afforded an opportunity to present arguments and evidence in his/her
own behalf before a determination of censurable conduct is made by the Board,
as provided in Subchapter J of this chapter (relating to Complaint Procedure).
(h)
Where a violation appears evident, the Board will consider
instituting disciplinary action by means of scheduling a public hearing in
conformance with Subchapter K of this chapter (relating to Hearings--Contested
Cases); however:
(1)
the registrant will first be advised of the right to voluntarily
contact the Board within a specified time limit to schedule an informal conference
normally at the Board office with an informal conference review committee
for the purpose of showing there has been no violation as alleged. The committee
will be composed of appropriate personnel. The registrant may employ an attorney
to represent him/her. If the registrant desires a conference and the complaint
cannot thereafter be dismissed on the evidence, an effort will be made to
reach an informal settlement. This settlement will take the form of a proposed
agreed Board order which will be presented to the Board for acceptance or
rejection;
(2)
if facts and circumstances of a particular case appear
to warrant disposition by offering the registrant a consent order, the executive
director on the advice of the staff and legal counsel may approve of such
offer in lieu of an informal conference. Any such consent order may be accepted
or rejected by the Board. If the registrant declines such an offer, or if
the Board rejects it, the procedures in paragraph (1) of this subsection will
be followed;
(3)
if the registrant's registration has expired, the
Board may propose not to renew the registration. If the registrant does not
concur with this action and submits the required fee to effect an automatic
renewal of his/her registration, the Board will renew the registration and
instigate proceedings to suspend the registration or revoke the registration;
or
(4)
any Board action under this subsection which is not
informally disposed by stipulation, agreed settlement, consent order, or default
will be treated as a contested case and disposed as provided by the Administrative
Procedure Act (Texas Civil Statutes, Government Code, Title 10, Chapter 2001)
and the Board rules for hearings and contested cases.
(A)
The Board shall hear such witnesses as are reasonably necessary
to fairly present the relevant issues as set forth in the complaint, together
with witnesses knowledgeable of material facts to the defense of the interior
designer.
(B)
Copies of the notices of formal hearings scheduled shall
be filed with the Secretary of State and other appropriate agencies.
(C)
The Board shall keep an official record of all proceedings
and exhibits.
(D)
The Board may cause a transcript of the proceedings to
be made which, together with the evidence and exhibits submitted, shall be
the record of the hearing. Such transcript may be made also on written request
of either party of said charges, but at the expense of the demand party. A
copy of such transcript, however caused to be made, shall be submitted to
the Board and become part of the record of the case.
(i)
Criminal convictions shall be handled as follows:
(1)
Under the authority of Texas Civil Statutes, Article 6252-13c,
Section 4e, and Article 249e, Chapter 5(b), the Board shall revoke the registration
of any registrant incarcerated as a result of conviction for a felony committed
subsequent to being registered as an interior designer. The registration of
any registrant shall also be revoked for felony probation revocation, revocation
of parole, or revocation of mandatory supervision subsequent to being registered
as an interior designer regardless of the date of the original conviction.
(2)
The Board may take any of the actions set out in subsection
(b) of this section when a registrant is convicted of a misdemeanor or a felony
without incarceration if the crime directly relates to his/her duties and
responsibilities as an interior designer as set out in Section 5.160 of this
title (relating to Criminal Convictions). Full disclosure of information involving
a misdemeanor or a felony is required at the time of the conviction.
(3)
Any registrant whose registration has been revoked
under the provisions of this subsection will be advised in writing of the
right to apply for reinstatement of registration.
(j)
The facts and circumstances of each disciplinary case will
be assessed by the following factors before any sanctions available to the
Board are ordered.
(1)
The seriousness of the prohibited acts or omissions.
(2)
The number of prior complaints found justified against
the respondent.
(3)
The severity of penalty necessary to deter future
violations.
(4)
Efforts or resistance to correct the violations.
(5)
Any hazard to the health, safety or welfare of the
public.
(6)
Any actual damage, physical or otherwise, caused by
the violations.
(7)
Any economic benefit gained through the violations.
(8)
Any other matters that justice and public welfare
may require.
(k)
The following is a table of suggested sanctions for specific
infractions of the law or rules.
Figure: 22 TAC §5.171(k) (No change.)
(l)
Any felony conviction which includes incarceration will
statutorily require the revocation of a registration, Article 6252-13c, Texas
Civil Statutes.
(m)
The Board, the executive director, an administrative hearing
judge, and the participants in an informal conference may arrive at a greater
or lesser sanction than suggested in subsection (k) of this section based
on the ultimate assessment of evidence or agreement in the expedience of justice.
Conditions of a suspension, probation, formal reprimand, or administrative
penalty may be set by the Board in its final order.
(n)
A registrant whose registration is current or renewable
under the Act, Section 14, is responsible to the Board and subject to all
rules governing the acts of registrants. The registrant shall answer promptly
all inquiries concerning matters under the jurisdiction of the Board, and
shall fully comply with final decisions and orders of the Board. Failure to
comply with these matters will constitute a separate offense of misconduct
subject to any of the penalties provided under the Act, Section 15.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on March 1, 2000.
TRD-200001550
Cathy L. Hendricks, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Effective date: March 21, 2000
Proposal publication date: December 24, 1999
For further information, please call: (512) 305-8535