Part 1.
TEXAS BOARD OF ARCHITECTURAL EXAMINERS
Chapter 1.
ARCHITECTS
Subchapter E. FEES
22 TAC §1.81
The Texas Board of Architectural Examiners adopts an amendment
to §1.81 for Title 22, Chapter 1, Subchapter E, pertaining to examination
fees, as published in the April 16, 2004, issue of the
Texas Register
(29 TexReg 3735). The section is being adopted with
changes.
The section specifies the fees charged by the board, including examination
fees. As amended, section 1.81 lists the fees for taking the Landscape Architect
Registration Examination to be administered during 2004 and 2005, lists the
fees for the administration of the examination for registration as an interior
designer during 2005, and repeals the administrative fee charged by the board
for the administration of the interior designer registration examination.
The board changed Section § 1.81 as proposed by repealing an obsolete
fee specified for the administration of the examination for registration as
an interior designer during April 2004.
The amended section repeals other obsolete fees charged for examinations
that have been administered. The amendment increases the examination fees
for registration as a landscape architect and for registration as an interior
designer. Examination providers that sell the examinations to the board have
increased the charge imposed upon the board. The amendment to §1.81 increases
the fees to cover the additional cost to the board of purchasing the examinations.
The interior designer examination provider is assuming the services previously
rendered by the board. The amendment repeals the administrative fee that the
board has imposed to cover the cost for the services.
The board received no comments pertaining to the proposal to adopt this
section.
The amendment to this section is adopted pursuant to Section
1051.202 of Tex. Occupations Code Annotated ch. 1051, which provides the board
with general authority to promulgate rules necessary to the administration
of its statutory responsibilities. The board also is authorized to set a fee
for a board action involving an administrative expense in an amount that is
reasonable and necessary to cover the cost of administering chapters 1051,
1052, and 1053, Tex. Occupations Code Annotated, relating to architects, landscape
architects, and interior designers, pursuant to Sections 1051.651(a), 1052.054(a),
and 1053.052(a) of Tex. Occupations Code Annotated, respectively.
§1.81.General.
(a) In addition to any fees established elsewhere in these
rules, by the Act, or by another provision of Texas law, the following fees
shall apply to services provided by the Board:
(b) The Board cannot accept cash as payment for any fee.
(c) An official postmark from the U.S. Postal Service may be
presented to the Board to demonstrate the timely payment of any fee.
(d) If a check is submitted to the Board to pay a fee and the
bank upon which the check is drawn refuses to pay the check, the fee shall
be considered unpaid and any applicable late fees shall accrue. The Board
shall impose a processing fee for any check that is returned unpaid by the
bank upon which the check is drawn.
(e) A Registrant who is in Good Standing or was in Good Standing
at the time the Registrant entered into military service shall be exempt from
the payment of any fee during any period of active duty service in the U.
S. military. The exemption under this subsection shall continue through the
remainder of the fiscal year during which the Registrant's active duty status
expires.
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 May 20, 2004.
TRD-200403411
Cathy L. Hendricks, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Effective date: June 9, 2004
Proposal publication date: April 16, 2004
For further information, please call: (512) 305-8535
Subchapter E. FEES
22 TAC §3.81
The Texas Board of Architectural Examiners adopts an amendment
to §3.81 for Title 22, Chapter 3, Subchapter E, pertaining to examination
fees, as published in the April 16, 2004, issue of the
Texas Register
(29 TexReg 3746). The section is being adopted with
changes.
Section 3.81 specifies the fees charged by the board, including examination
fees. As amended, §3.81 lists the fees for taking the Landscape Architect
Registration Examination to be administered during 2004 and 2005, lists the
fees for the administration of the examination for registration as an interior
designer during 2005, and repeals the administrative fee charged by the board
for the administration of the interior designer registration examination.
The board changed §3.81 as proposed by repealing an obsolete examination
fee for the administration of the examination for registration as an interior
designer that was administered during April 2004.
The amended section repeals other obsolete fees charged for examinations
that have been administered. The amendment increases the examination fees
for registration as a landscape architect and for registration as an interior
designer. Examination providers that sell the examinations to the board have
increased the charge imposed upon the board. The amendment increases the fees
to cover the additional cost to the board of purchasing the examinations.
The interior designer examination provider is assuming the services previously
rendered by the board. The amendment repeals the administrative fee that the
board has imposed to cover the cost for the services.
The board received no comments pertaining to the proposal to adopt this
section.
The amendment to this section is adopted pursuant to §1051.202
of Tex. Occupations Code Annotated ch. 1051, which provides the board with
general authority to promulgate rules necessary to the administration of its
statutory responsibilities. The board also is authorized to set a fee for
a board action involving an administrative expense in an amount that is reasonable
and necessary to cover the cost of administering chapters 1051, 1052, and
1053, Tex. Occupations Code Annotated, relating to architects, landscape architects,
and interior designers, pursuant to §§1051.651(a), 1052.054(a),
and 1053.052(a) of Tex. Occupations Code Annotated, respectively.
§3.81.General.
(a) In addition to any fees established elsewhere in these
rules, by the Act, or by another provision of Texas law, the following fees
shall apply to services provided by the Board:
(b) The Board cannot accept cash as payment for any fee.
(c) An official postmark from the U.S. Postal Service may be
presented to the Board to demonstrate the timely payment of any fee.
(d) If a check is submitted to the Board to pay a fee and the
bank upon which the check is drawn refuses to pay the check, the fee shall
be considered unpaid and any applicable late fees shall accrue. The Board
shall impose a processing fee for any check that is returned unpaid by the
bank upon which the check is drawn.
(e) A Registrant who is in Good Standing or was in Good Standing
at the time the Registrant entered into military service shall be exempt from
the payment of any fee during any period of active duty service in the U.
S. military. The exemption under this subsection shall continue through the
remainder of the fiscal year during which the Registrant's active duty status
expires.
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 May 20, 2004.
TRD-200403412
Cathy L. Hendricks, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Effective date: June 9, 2004
Proposal publication date: April 16, 2004
For further information, please call: (512) 305-8535
Subchapter E. FEES
22 TAC §5.91
The Texas Board of Architectural Examiners adopts an amendment
to §5.91 for Title 22, Chapter 5, Subchapter E, pertaining to examination
fees, as published in the April 16, 2004, issue of the
Texas Register
(29 TexReg 3755). The section is being adopted with
changes.
Section 5.91 specifies the fees charged by the board, including examination
fees. As amended, the section lists the fees for taking the Landscape Architect
Registration Examination to be administered during 2004 and 2005, lists the
fees for the administration of the examination for registration as an interior
designer during 2005, and repeals the administrative fee charged by the board
for the administration of the interior designer registration examination.
The board changed Section §5.91 as proposed by repealing an obsolete
fee charged for the administration of the examination for registration as
an interior designer that was administered in April 2004.
The amended section repeals other obsolete fees charged for examinations
that have been administered. The amendment increases the examination fees
for registration as a landscape architect and for registration as an interior
designer. Examination providers that sell the examinations to the board have
increased the charge imposed upon the board. The amendment increases the fees
to cover the additional cost to the board of purchasing the examinations.
The interior designer examination provider is assuming the services previously
rendered by the board. The amendment repeals the administrative fee that the
board has imposed to cover the cost for the services.
The board received no comments pertaining to the proposal to adopt this
section.
The amendment to this section is adopted pursuant to Section
1051.202 of Tex. Occupations Code Annotated ch. 1051, which provides the board
with general authority to promulgate rules necessary to the administration
of its statutory responsibilities. The board also is authorized to set a fee
for a board action involving an administrative expense in an amount that is
reasonable and necessary to cover the cost of administering chapters 1051,
1052, and 1053, Tex. Occupations Code Annotated, relating to architects, landscape
architects, and interior designers, pursuant to Sections 1051.651(a), 1052.054(a),
and 1053.052(a) of Tex. Occupations Code Annotated, respectively.
§5.91.General.
(a) In addition to any fees established elsewhere in these
rules, by the Act, or by another provision of Texas law, the following fees
shall apply to services provided by the Board:
(b) The Board cannot accept cash as payment for any fee.
(c) An official postmark from the U.S. Postal Service may be
presented to the Board to demonstrate the timely payment of any fee.
(d) If a check is submitted to the Board to pay a fee and the
bank upon which the check is drawn refuses to pay the check, the fee shall
be considered unpaid and any applicable late fees shall accrue. The Board
shall impose a processing fee for any check that is returned unpaid by the
bank upon which the check is drawn.
(e) A Registrant who is in Good Standing or was in Good Standing
at the time the Registrant entered into military service shall be exempt from
the payment of any fee during any period of active duty service in the U.
S. military. The exemption under this subsection shall continue through the
remainder of the fiscal year during which the Registrant's active duty status
expires.
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 May 20, 2004.
TRD-200403413
Cathy L. Hendricks, ASID/IIDA
Executive Director
Texas Board of Architectural Examiners
Effective date: June 9, 2004
Proposal publication date: April 16, 2004
For further information, please call: (512) 305-8535
Chapter 203.
LICENSING AND ENFORCEMENT--SPECIFIC SUBSTANTIVE RULES
22 TAC §203.7
The Texas Funeral Service Commission adopts an amendment
to Title 22, Texas Administrative Code, Chapter 203, Section 203.7 (relating
to Price Disclosures). Notice of the proposed action was published in the
March 12, 2004 issue of the
Texas Register
(29
TexReg 2530). The amended section is adopted without changes to the proposed
text.
The amendment to Section 203.7 is adopted to clarify that the statement
of funeral goods and services selected must be itemized and list the funeral
goods and services selected by a person and the prices to be paid for each
of them, unless there is a discounted package arrangement that itemizes the
discount provided by the package arrangement.
The Alderwoods Group and Jerry Miller of Hewitt, Texas commented favorably
on the proposed new chapter and section.
The amendment to section 203.7 is adopted under Texas Occupations
Code, Section 651.152. The commission interprets section 651.152 as authorizing
it to adopt rules as necessary to administer Chapter 561.
No other statutes, articles, or codes are affected by the proposal.
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 May 20, 2004.
TRD-200403467
O. C. Robbins
Executive Director
Texas Funeral Service Commission
Effective date: June 9, 2004
Proposal publication date: March 12, 2004
For further information, please call: (512) 936-2474
22 TAC §203.17
The Texas Funeral Service Commission adopts an amendment
to Title 22, Texas Administrative Code, Chapter 203, Section 203.17 (relating
to Clarification of Other Facilities Necessary in a Preparation Room). Notice
of the proposed action was published in the March 12, 2004 issue of the
The amendment to Section 203.17 is adopted because existing subsections
203.17(b) and (c) simply parrot the language of Occupations Code, Section
651.351(g). The statute is self-explanatory. The rule is redundant.
The Alderwoods Group and Jerry Miller of Hewitt, Texas commented favorably
on the proposed new chapter and section.
The amendment to section 203.17 is adopted under Texas Occupations
Code, Section 651.152. The commission interprets section 651.152 as authorizing
it to adopt rules as necessary to administer Chapter 561.
No other statutes, articles, or codes are affected by the proposal.
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 May 20, 2004.
TRD-200403468
O. C. Robbins
Executive Director
Texas Funeral Service Commission
Effective date: June 9, 2004
Proposal publication date: March 12, 2004
For further information, please call: (512) 936-2474
22 TAC §203.35
The Texas Funeral Service Commission adopts a new rule at
Title 22, Texas Administrative Code, Chapter 203, Section 203.35 (relating
to Clarification of Establishment Chapel Requirements). The new rule is proposed
in order to clarify required facilities under Texas Occupations Code, Section
651.351. Notice of the proposed action was published in the March 12, 2004
issue of the
Texas Register
(29 TexReg 2531).
The new section is adopted without changes to the proposed text.
The Alderwoods Group and Jerry Miller of Hewitt, Texas commented favorably
on the proposed new chapter and section.
The new section 203.35 is adopted under Texas Occupations Code,
Section 651.152. The commission interprets section 651.152 as authorizing
it to adopt rules as necessary to administer Chapter 651.
No other statutes, articles, or codes are affected by the proposal.
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 May 20, 2004.
TRD-200403470
O. C. Robbins
Executive Director
Texas Funeral Service Commission
Effective date: June 9, 2004
Proposal publication date: March 12, 2004
For further information, please call: (512) 936-2474
22 TAC §207.1
The Texas Funeral Service Commission (commission) adopts
new chapter 207 (relating to Alternative Dispute Resolution) and new §207.1
(relating to Alternative Dispute Resolution Policy and Procedure). Notice
of the proposed action was published in the March 12, 2004 issue of the
New §207.1 implements the legislative directive of Occupations Code, §651.167
to develop and implement a policy to encourage the use of alternative dispute
resolution procedures for the resolution of internal and external disputes.
The section closely tracks the Guidelines developed by the State Office of
Administrative Hearings. The changes made from the published version include
putting the language of the first paragraph in the active voice, substituting
the word "counsel" for "legal" in subsection (b)(7), removing an unnecessary
semicolon in subsection (i)(4), and removing the word "of" from subsection
(i)(5).
The Alderwoods Group and Jerry Miller of Hewitt, Texas commented favorably
on the proposed new chapter and section.
The new chapter and section are adopted under Texas Occupations
Code, §§651.152 and 651.167. The commission interprets §651.152
as authorizing it to adopt rules as necessary to administer Chapter 651. The
commission interprets §651.167 as requiring it to adopt alternative dispute
resolution procedures.
No other statutes, articles, or codes are affected by new chapter and section.
§207.1.Alternative Dispute Resolution Policy and Procedure.
(a)
Policy. The Texas Funeral Service Commission encourages
the resolution and early settlement of all contested matters through voluntary
settlement procedures. Commission employees shall implement this policy.
(b)
Definitions. The following words and terms, when used in
this chapter, shall have the following meanings, unless the context clearly
indicates otherwise.
(1)
ADR--Alternative Dispute Resolution.
(2)
Alternative dispute resolution director or ADR procedure--A
nonjudicial and informally conducted forum for the voluntary settlement of
contested matter through intervention of an impartial third party.
(3)
Alternative dispute resolution director or ADR director--The
director of the agency office empowered by the commission to coordinate and
oversee ADR procedures and mediators.
(4)
Contested matter--A request for an order or other formal
or informal authorization from the commission that is opposed.
(5)
Mediator--The person appointed by the ADR office director
to preside over ADR proceedings regardless of which ADR method is used.
(6)
Parties--The agencies, employees, managers, supervisors
or customers who are in conflict.
(7)
Participants--The executive director, the agency legal
counsel, the complainant, the respondent, the person who timely filed hearing
requests which gave rise to the dispute or if parties have been named, the
named parties.
(8)
Private mediator--A person in the profession of mediation
who is not a Texas state employee and who has met all the qualifications prescribed
by Texas law for mediators.
(c)
Referral of Contested Matter for Alternative Dispute Resolution
Procedures. The commission or the ADR director may seek to resolve a contested
matter through any ADR procedure. Such procedures may include, but are not
limited to, those applied to resolve matters pending at the State Office of
Administrative Hearing (SOAH) and in the state's district courts.
(d)
Appointment of Mediator.
(1)
For each matter referred for ADR procedures, the ADR director
shall assign a mediator, unless the participants agree upon the use of a private
mediator. The ADR director may assign a substitute or additional mediator
to a proceeding as the ADR director deems necessary.
(2)
A private mediator may be hired for commission ADR procedures
provided that:
(A)
the participants unanimously agree to use a private mediator;
(B)
the participants unanimously agree to the selection of
the person to serve as the mediator;
(C)
the mediator agrees to be subject to the direction of the
commission's ADR director and to all time limits imposed by the director,
the judge, statute or regulation.
(3)
If a private mediator is used, the costs for the services
of the mediator shall be apportioned equally among the participants, unless
otherwise agreed upon by the participants, and shall be paid directly to the
mediator. In no event, however, shall any such costs be apportioned to a governmental
subdivision or entity that is a statutory party to the hearing.
(4)
All mediators in commission mediation proceedings shall
subscribe to the ethical guidelines for mediators adopted by the ADR Section
of the State Bar of Texas.
(e)
Qualifications of Mediators.
(1)
The commission shall establish a list of mediators to resolve
contested matters through ADR procedures.
(A)
To the extent practicable, each mediator shall receive
40 hours of formal training in ADR procedures through programs approved by
the ADR director.
(B)
Other individuals may serve as mediators on an ad hoc basis
in light of particular skills or experience which will facilitate the resolution
of individual contested matters.
(2)
SOAH mediators, employees of other agencies who are mediators
and private pro bono mediators may be assigned to contested matters as needed.
(A)
Each mediator shall first have received 40 hours of Texas
mediation training as prescribed.
(B)
Each mediator shall have some knowledge in the area of
the contested matter.
(C)
If the mediator is a SOAH judge, that person will not also
sit as the judge for the case if the contested matter goes to public hearing.
(f)
Commencement of ADR.
(1)
The commission encourages the resolution of disputes at
any time, whether under this policy and procedure or not. ADR procedures under
this policy may begin, at the discretion of the ADR director, anytime once
deemed administratively complete and at least one letter of appeal has been
filed with commission.
(2)
Upon unanimous motion of the parties and the discretion
of the judge, the provisions of this subsection may apply to contested hearings.
In such cases, it is within the discretion of the judge to continue the hearing
to allow use of the ADR procedures.
(g)
Stipulations. When ADR procedures do not result in the
full settlement of a contested matter, the participants, in conjunction with
the mediator, shall limit the contested issues through the entry of written
stipulations. Such stipulations shall be forwarded or formally presented to
the judge assigned to conduct the hearing on the merits and shall be included
in the hearing record.
(h)
Agreements. Agreements of the participants reached as a
result of ADR must be in writing and are enforceable in the same manner as
any other written contract.
(i)
Confidentiality of Communications in Alternative Dispute
Resolution Procedures.
(1)
Except as provided in subsections (3) and (4) of this section
a communication relating to the subject matter made by the participant in
an ADR procedure whether before or after the institution of formal proceedings,
is confidential, is not subject to disclosure and may not be used as evidence
in any further proceedings.
(2)
Any notes or record made of an ADR procedure are confidential,
and participants, including the mediator, may not be required to testify in
any proceedings relating to or arising out of the matter in dispute or be
subject to process requiring disclosure of confidential information or data
relating to or arising out of the matter in dispute.
(3)
An oral communication or written material used in or made
a part of and ADR procedure is admissible or discoverable independent of the
procedure.
(4)
If this section conflicts with other legal requirements
for disclosure of communications or materials, the issue of confidentiality
may; be presented to the judge to determine, in camera, whether the facts,
circumstances and context of the communications or materials sought to be
disclosed warrant a protective order or whether the communications or materials
are subject to disclosure.
(5)
The mediator may not, directly or indirectly, communicate
with the judge or any commissioner, of any aspect of ADR negotiations made
confidential by this section.
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 May 20, 2004.
TRD-200403469
O. C. Robbins
Executive Director
Texas Funeral Service Commission
Effective date: June 9, 2004
Proposal publication date: March 12, 2004
For further information, please call: (512) 936-2474
Chapter 473.
FEES
22 TAC §473.3
The Texas State Board of Examiners of Psychologists adopts
amendments to §473.3, concerning Annual Renewal Fees (Not Refundable)
without changes to the proposed text as published in the March 5, 2004, issue
of the
Texas Register
(29 TexReg 2171)
The amendments are being adopted to correct implementation of HB 2985 which
requires the agency to raise annual licensure renewal fees.
The adopted amendments will make the rule easier for the licensees and
public to follow and understand.
No comments were received regarding the adoption of the amendments.
The amendments are adopted under Texas Occupations Code, Title
3, Subtitle I, Chapter 501, which provides the Texas State Board of Examiners
of Psychologists with the authority to make all rules, not inconsistent with
the Constitution and Laws of this State, which are reasonably necessary for
the proper performance of its duties and regulations of proceedings before
it.
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 May 18, 2004.
TRD-200403356
Sherry L. Lee
Executive Director
Texas State Board of Examiners of Psychologists
Effective date: June 7, 2004
Proposal publication date: March 5, 2004
For further information, please call: (512) 305-7700
22 TAC §473.5
The Texas State Board of Examiners of Psychologists adopts
amendments to §473.5, concerning Miscellaneous Fees (Not Refundable)
without changes to the proposed text as published in the March 5, 2004, issue
of the
Texas Register
(29 TexReg 2172).
The amendments are being adopted to clarify miscellaneous fees.
The adopted amendments will make the rule easier for the licensees and
public to follow and understand.
No comments were received regarding the adoption of the amendments.
The amendments are adopted under Texas Occupations Code, Title
3, Subtitle I, Chapter 501, which provides the Texas State Board of Examiners
of Psychologists with the authority to make all rules, not inconsistent with
the Constitution and Laws of this State, which are reasonably necessary for
the proper performance of its duties and regulations of proceedings before
it.
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 May 18, 2004.
TRD-200403357
Sherry L. Lee
Executive Director
Texas State Board of Examiners of Psychologists
Effective date: June 7, 2004
Proposal publication date: March 5, 2004
For further information, please call: (512) 305-7700
Chapter 501.
RULES OF PROFESSIONAL CONDUCT
Subchapter A. GENERAL PROVISIONS
22 TAC §501.52
The Texas State Board of Public Accountancy adopts an amendment
to §501.52 concerning Definitions without changes to the proposed text
as published in the April 2, 2004 issue of the
Texas
Register
(29 TexReg 3322). The text of the rule will not be republished.
The amendment to §501.52 will add the Administrative Code citation
for the board’s rules, place quotation marks around terms to be defined
and add limited liability partnerships and limited liability companies to
the definition of a CPA firm.
The amendment will function by clarifying the definitions and making them
easier to read.
No comments were received regarding adoption of the rule.
The amendment is adopted under the Public Accountancy Act ("Act"),
Texas Occupations Code, §901.151 which provides the agency with the authority
to amend, adopt and repeal rules deemed necessary or advisable to effectuate
the Act.
No other article, statute or code is affected by the adoption.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on May 20, 2004.
TRD-200403414
Rande Herrell
General Counsel
Texas State Board of Public Accountancy
Effective date: June 9, 2004
Proposal publication date: April 2, 2004
For further information, please call: (512) 305-7848
22 TAC §501.53
The Texas State Board of Public Accountancy adopts an amendment
to §501.53 concerning Applicability of Rules of Professional Conduct
without changes to the proposed text as published in the April 2, 2004 issue
of the
Texas Register
(29 TexReg 3324). The
text of the rule will not be republished.
The amendment to §501.53 will add §501.78 (regarding Withdrawal
or Resignation) to the list of rules of professional conduct that are applicable
to CPAs that do not engage in the client practice of public accountancy.
The amendment will function by being applicable to all licensed CPAs.
No comments were received regarding adoption of the rule.
The amendment is adopted under the Public Accountancy Act ("Act"),
Texas Occupations Code, §901.151 which provides the agency with the authority
to amend, adopt and repeal rules deemed necessary or advisable to effectuate
the Act.
No other article, statute or code is affected by the adoption.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on May 20, 2004.
TRD-200403415
Rande Herrell
General Counsel
Texas State Board of Public Accountancy
Effective date: June 9, 2004
Proposal publication date: April 2, 2004
For further information, please call: (512) 305-7848
22 TAC §501.80
The Texas State Board of Public Accountancy adopts an amendment
to §501.80 concerning Practice of Public Accountancy without changes
to the proposed text as published in the April 2, 2004 issue of the
The amendment to §501.80 will clearly state that a person must possess
both a certificate and a current license in order to represent that they are
a Certified Public Accountant.
The amendment will function by clearly stating that unlicensed persons
may not represent that they are CPAs.
No comments were received regarding adoption of the rule.
The amendment is adopted under the Public Accountancy Act ("Act"),
Texas Occupations Code, §901.151 which provides the agency with the authority
to amend, adopt and repeal rules deemed necessary or advisable to effectuate
the Act.
No other article, statute or code is affected by the adoption.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on May 20, 2004.
TRD-200403416
Rande Herrell
General Counsel
Texas State Board of Public Accountancy
Effective date: June 9, 2004
Proposal publication date: April 2, 2004
For further information, please call: (512) 305-7848
22 TAC §509.6
The Texas State Board of Public Accountancy adopts new rule §509.6
concerning Rulemaking Procedures without changes to the proposed text as published
in the April 2, 2004 issue of the
Texas Register
(29 TexReg 3325). The text of the rule will not be republished.
New rule §509.6 moves, re-names and re-numbers former rule §519.3.
This new rule is the result of rule review conducted pursuant to §2001.039
of the Government Code. Government Code §2001.039 requires that each
state agency review and consider for readoption each rule adopted by that
agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure
Act). The Board published a Notice of Intention to Review Title 22, Part 22,
Chapter 509 in the February 7, 2003 issue of the
Texas Register
(28 TexReg 1234). No comments were received following
publication of the notice.
The new rule will function by being placed in a more logical location.
No comments were received regarding adoption of the rule.
The new rule is adopted under the Public Accountancy Act ("Act"),
Texas Occupations Code, §901.151 which provides the agency with the authority
to amend, adopt and repeal rules deemed necessary or advisable to effectuate
the Act.
No other article, statute or code is affected by the adoption.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on May 20, 2004.
TRD-200403417
Rande Herrell
General Counsel
Texas State Board of Public Accountancy
Effective date: June 9, 2004
Proposal publication date: April 2, 2004
For further information, please call: (512) 305-7848
22 TAC §518.1, §518.2
The Texas State Board of Public Accountancy adopts the repeal
of §518.1 concerning Cease and Desist Orders and §518.2 concerning
Administrative Penalty Guidelines for Violations of Cease and Desist Orders
without changes to the proposed text as published in the April 2, 2004 issue
of the
Texas Register
(29 TexReg 3327).
The proposed repeal of §518.1 and §518.2 will repeal two rules
that are being rewritten and relocated.
The repeals will function by rewriting and relocating these rules.
No comments were received regarding adoption of these repeals.
The repeals are adopted under the Public Accountancy Act ("Act"),
Texas Occupations Code, §901.151 which provides the agency with the authority
to amend, adopt and repeal rules deemed necessary or advisable to effectuate
the Act.
No other article, statute or code is affected by these adoptions.
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 May 20, 2004.
TRD-200403418
Rande Herrell
General Counsel
Texas State Board of Public Accountancy
Effective date: June 9, 2004
Proposal publication date: April 2, 2004
For further information, please call: (512) 305-7848
22 TAC §§518.1 - 518.4
The Texas State Board of Public Accountancy adopts new rules §518.1
concerning Definitions, §518.2 concerning Cease and Desist Orders, §518.3
concerning Violation of a Cease and Desist Order and §518.4 concerning
Administrative Penalty Guidelines for Violations of Cease and Desist Orders
without changes to the proposed text as published in the April 2, 2004 issue
of the
Texas Register
(29 TexReg 3327). The
text of the rules will not be republished.
New rules §518.1 through 518.4 will explain that the definitions in
chapter 519 are applicable to chapter 518, will describe the cease and desist
orders, the procedures and the consequences for not complying with cease and
desist orders.
The new rules will function by offering faster hearing dates at SOAH than
district courts.
No comments were received regarding adoption of these rules.
The new rules are adopted under the Public Accountancy Act ("Act"),
Texas Occupations Code, §901.151 which provides the agency with the authority
to amend, adopt and repeal rules deemed necessary or advisable to effectuate
the Act.
No other article, statute or code is affected by these adoptions.
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 May 20, 2004.
TRD-200403419
Rande Herrell
General Counsel
Texas State Board of Public Accountancy
Effective date: June 9, 2004
Proposal publication date: April 2, 2004
For further information, please call: (512) 305-7848
22 TAC §§519.1 - 519.14, 519.16, 519.17
The Texas State Board of Public Accountancy adopts the repeal
of Chapter 519, §519.1 concerning Purpose and Scope, §519.2 concerning
Computation of Time, §519.3 concerning Rulemaking Proceedings, §519.4
concerning Conduct and Decorum, §519.5 concerning Ex Parte Consultations, §519.6
concerning Informal Conferences and Informal Dispositions, §519.7 concerning
Administrative Penalties, §519.8 concerning Subpoenas, §519.9 concerning
Procedures after Hearing, §519.10 concerning The Record and Assessment
of Cost of Preparation, §519.11 concerning Follow-Up, §519.12 concerning
Publication of Disciplinary/Administrative Sanctions, §519.13 concerning
Mediation and Alternative Dispute Resolution, §519.14 concerning Emergency
Suspension, §519.16 concerning Misdemeanors that Subject a Certificate
or Registration Holder to Discipline by the Board and §519.17 concerning
Administrative Penalty Guidelines without changes to the proposed text as
published in the April 2, 2004 issue of the
Texas
Register
(29 TexReg 3329).
The proposed repeal of Chapter 519 will remove these rules so they can
be replaced by re-written rules.
The repeals will function by replacing this rules with re-written rules
that are current and applicable.
These repeals are the result of rule review conducted pursuant to §2001.039
of the Government Code. Government Code §2001.039 requires that each
state agency review and consider for readoption each rule adopted by that
agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure
Act). The Board published a Notice of Intention to Review Title 22, Part 22,
Chapter 519 in the February 7, 2003 issue of the
Texas Register
(28 TexReg 1234). No comments were received following
publication of the notice.
No comments were received regarding adoption of these repeals.
The repeals are adopted under the Public Accountancy Act ("Act"),
Texas Occupations Code, §901.151 which provides the agency with the authority
to amend, adopt and repeal rules deemed necessary or advisable to effectuate
the Act and §2001.039 of the Government Code Chapter 2001 (Administrative
Procedure Act) that requires that each state agency review and consider for
readoption each rule adopted by that agency.
No other article, statute or code is affected by these adoptions.
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 May 20, 2004.
TRD-200403420
Rande Herrell
General Counsel
Texas State Board of Public Accountancy
Effective date: June 9, 2004
Proposal publication date: April 2, 2004
For further information, please call: (512) 305-7848
Subchapter A. GENERAL PROVISIONS
22 TAC §§519.1 - 519.9
The Texas State Board of Public Accountancy adopts new rules §519.1
concerning Purpose and Scope; §519.2 concerning Definitions; §519.3
Computation of Time; §519.4. concerning Conduct and Decorum; §519.5.
concerning Ex Parte Consultations; §519.6 concerning Subpoenas; §519.7
concerning Misdemeanors that Subject a Certificate or Registration Holder
to Discipline by the Board, §519.8 concerning Administrative Penalties
and §519.9 concerning Administrative Penalty Guidelines in Subchapter
A concerning General Provisions without changes to the proposed text as published
in the April 2, 2004 issue of the
Texas Register
(29 TexReg 3330). The text of the rules will not be republished.
New board rule §519.1 describes the purpose and scope of Chapter 519.
New board rule §519.2 contains the definitions needed to understand Chapter
519. New board rule §519.3 describes computation of time. New board rule §519.4
describes conduct and decorum in committee and board proceedings. New board
rule §519.5 addresses ex parte consultations. New board rule §519.6
describes the board’s new subpoena power. New board rule §519.7
lists the criminal offenses that involve dishonesty, fraud, moral turpitude
or alcohol abuse or controlled substances that directly relate to the practice
of accounting, including recidivism. New Board Rule §519.8, which is
former board rule §519.7, recreates the administrative penalties that
may be assessed against licenses. New board rule §519.9 contains guidelines
for the assessment of administrative penalties in disciplinary matters.
These new rules are the result of rule review conducted pursuant to §2001.039
of the Government Code. Government Code §2001.039 requires that each
state agency review and consider for readoption each rule adopted by that
agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure
Act). The Board published a Notice of Intention to Review Title 22, Part 22,
Chapter 519 in the February 7, 2003 issue of the
Texas Register
(28 TexReg 1234). No comments were received following
publication of the notice.
The new rules will function by making the rules clearer and easier to understand.
One comment was received regarding adoption of these rules. Mr. Ray E.
Berend, Managing Partner of Padgett, Stratemann & Company, commented on
the proposed rewrite of Chapter 519. He believes proposed rule 519.9 should
require complainants to reimburse licensees for the costs that licensees incur
and the time they spend responding to frivolous complaints or to complaints
that lack substantial merit. Assessing a licensee’s costs to respond
to the board against complainants would be unfair to complainants and would
cause a major decline, if not a cessation, in the receipt of complaints. Individuals
are, and should be, encouraged to forward any potential complaints to the
Board for examination by board staff. All complaints are screened by board
staff to exclude complaints that are not within the board’s jurisdiction
and complaints that are patently frivolous. However, if the board asks a CPA
or CPA firm to respond to an allegation, then this means that board staff
has determined that the allegation is within the board’s jurisdiction
and that it should be the subject of an inquiry at least to the extent of
requiring a response or explanation. Lacking substantial merit is a particularly
onerous burden because it means the complaint has merit, but not substantial
merit.
The new rules are adopted under the Public Accountancy Act ("Act"),
Texas Occupations Code, §901.151 which provides the agency with the authority
to amend, adopt and repeal rules deemed necessary or advisable to effectuate
the Act and §2001.039 of the Government Code Chapter 2001 (Administrative
Procedure Act) that requires that each state agency review and consider for
readoption each rule adopted by that agency.
No other article, statute or code is affected by these adoptions.
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 May 20, 2004.
TRD-200403421
Rande Herrell
General Counsel
Texas State Board of Public Accountancy
Effective date: June 9, 2004
Proposal publication date: April 2, 2004
For further information, please call: (512) 305-7848
22 TAC §§519.20 - 519.25
The Texas State Board of Public Accountancy adopts new rules §519.20
concerning Complaints; §519.21 concerning Investigations; §519.22
concerning Committee Considerations; §519.23 concerning Informal Conferences, §519.24
concerning Committee Recommendations and §519.25 concerning Mediation
and Alternative Dispute Resolution in Subchapter B concerning Complaints and
Investigations without changes to the proposed text as published in the April
2, 2004 issue of the
Texas Register
(29 TexReg
3333). The text of the rules will not be republished.
The new rules §519.20 through §519.25 will describe the Board's
enforcement complaint, investigative, informal conference and committee procedures.
These new rules are the result of rule review conducted pursuant to §2001.039
of the Government Code. Government Code §2001.039 requires that each
state agency review and consider for readoption each rule adopted by that
agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure
Act). The Board published a Notice of Intention to Review Title 22, Part 22,
Chapter 519 in the February 7, 2003 issue of the
Texas Register
(28 TexReg 1234). No comments were received following
publication of the notice.
The new rules will function by describing the Board's enforcement complaint,
investigative, informal conference and committee procedures for anyone to
read.
One comment was received regarding adoption of these rules. Mr. Ray E.
Berend, Managing Partner of Padgett, Stratemann & Company, commented on
the proposed rewrite of Chapter 519. Regarding proposed rule §519.21(d),
Mr. Berend wants licensees to be allowed additional time (beyond the thirty
days) in which to respond to the Board. It is and has been the practice of
board staff to grant requests for additional time when the licensee has a
good reason why they need additional time in which to respond. However, unsupported
requests for additional time or requests based on being busy are not granted.
The new rules are adopted under the Public Accountancy Act ("Act"),
Texas Occupations Code, §901.151 which provides the agency with the authority
to amend, adopt and repeal rules deemed necessary or advisable to effectuate
the Act and §2001.039 of the Government Code Chapter 2001 (Administrative
Procedure Act) that requires that each state agency review and consider for
readoption each rule adopted by that agency.
No other article, statute or code is affected by these adoptions.
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 May 20, 2004.
TRD-200403422
Rande Herrell
General Counsel
Texas State Board of Public Accountancy
Effective date: June 9, 2004
Proposal publication date: April 2, 2004
For further information, please call: (512) 305-7848
22 TAC §§519.40 - 519.53
The Texas State Board of Public Accountancy adopts new rules §519.40
concerning General Provisions; §519.41 concerning Pleadings in Contested
Cases; §519.42 concerning Service in SOAH Proceedings; §519.43 concerning
Emergency Suspension; §519.44 concerning Default; §519.45 concerning
Discovery; §519.46 concerning Official Notice and Business Records Affidavit; §519.47
concerning Waiver of Privilege/Confidentiality, §519.48 concerning Final
Witness List, §519.49 concerning Exhibits, §519.50 concerning Reporter
and Transcripts, §519.51 concerning Evidence, §519.52 concerning
Motions and §519.53 concerning Dismissal by the Board. Board rules §519.40, §519.44, §519.45, §519.49
and §519.53 are adopted with non-substantive changes to the proposed
text as published in the April 2, 2004 issue of the
Texas Register
(29 TexReg 3336). The change in §519.40 corrects
the name of the document that confers jurisdiction on SOAH. The change in §519.44
deletes a sentence that required an ALJ to grant a board motion to remand.
The change in §519.45 inserts "may" to allow an ALJ to issue certain
types of orders. The changes to §519.49 allow an ALJ to exclude unnecessary
and duplicative exhibits and allow an ALJ to re-consider their initial ruling.
The changes to §519.53 recognize that SOAH loses jurisdiction once it
issues a proposal for decision and omits a sentence that might be misread
as barring re-prosecution. Board rules §519.41, §519.42, §519.43, §519.46, §519.47, §519.48, §519.50, §519.51
and §519.52 are adopted without changes to the proposed text as published
in the April 2, 2004 issue of the
Texas Register
(29 TexReg 3336). The text of those rules will not be republished.
New rules §519.40 through §519.53 describe the procedures for
proceedings at the State Office of Administrative Hearings ("SOAH"). While
all of the rules are new, most of them describe the current actual practice
and supplement SOAH’s procedural rules and the Texas Rules of Civil
Procedure. Rule 519.40 appoints SOAH to hear the Board’s cases. Rule
519.41 describes the contents of pleadings in contested cases, procedures,
applicable time limits and contains language for default proceedings. Rule
519.42 requires service according to SOAH’s rules. Rule 519.43 is former
rule 519.14, and it describes emergency suspension procedures and the Executive
Committee’s role. Rule 519.44 describes default proceedings. Rule 519.45
describes the several available discovery procedures and deadlines. Rule 519.46
describes the official notice and business records affidavit procedures and
filing schedules. Rule 519.47 describes waiver of privilege and confidentiality
in discovery proceedings. Rule 519.48 describes the procedure and deadline
for designation of witnesses and final witness list. Rule 519.49 describes
the procedure and deadlines for exhibits. Rule 519.50 addresses court reporters
and transcripts of the hearings. Rule 519.51 describes the evidentiary rules
that are applicable. Rule 519.52 applies SOAH's rules to Motions. Rule 519.53
allows the Board to dismiss a complaint at anytime.
These new rules are the result of rule review conducted pursuant to §2001.039
of the Government Code. Government Code §2001.039 requires that each
state agency review and consider for readoption each rule adopted by that
agency pursuant to the Government Code, Chapter 2001 (Administrative Procedure
Act). The Board published a Notice of Intention to Review Title 22, Part 22,
Chapter 519 in the February 7, 2003 issue of the
Texas Register
(28 TexReg 1234). No comments were received following
publication of the notice.
The new rules will function by streamlining the proceedings at SOAH.
Two comments were received regarding adoption of these rules. Mr. Ray E.
Berend, Managing Partner of Padgett, Stratemann & Company, commented on
the proposed rewrite of Chapter 519. Mr. Berend objects to proposed §519.40
because it allows the Board to overrule an ALJ’s findings and rulings.
Mr. Berend believes this confers arbitrary power on the Board to overrule
a neutral fact finder. If an ALJ has reached an incorrect or unsupportable
opinion, decision or recommendation, then it is the board’s duty to
protect the public by correcting the ALJ’s incorrect opinion, recommendation
and decision. Mr. Berend mentioned "rulings," but evidentiary admissibility
rulings are not corrected by the Board. The ALJ merely makes a recommendation
as to the appropriate disposition. ALJ’s are not empowered to decide
what, if any, disciplinary or corrective action should be imposed because
that power is expressly reserved for the Board.
Mr. Berend wants proposed §519.40 to allow licensees to appeal an
enforcement committee’s recommendation to the full Board prior to proceeding
to a hearing before an ALJ. The enforcement committee’s finding is merely
a preliminary determination as to whether a violation has occurred and a recommendation
as to the appropriate disposition of the matter. The administrative hearing
is where the facts are conclusively established by the Board’s appointed
neutral fact finder. The full Board cannot render a decision until the facts
are established. Allowing licensees to "appeal" a committee’s "findings"
to the full board before proceeding to a hearing before an ALJ would require
the full Board to make a determination without giving the respondent an opportunity
for a hearing as required by statute. The full Board would have participated
in the investigation of the matter. This would leave no unexposed board members
available to consider the ALJ’s proposed recommendations because of
the requirement in §901.153(e) of the Public Accountancy Act that board
members who participated in the investigation may not vote on the final disposition
of the case. The only findings that are made by Enforcement committees are
the recommended findings of fact that are contained in consent orders that
have been agreed to in writing by the licensees. Enforcement committees make
recommendations which include recommending an administrative hearing in contested
matters.
Ms. Shelia Bailey Taylor, Chief Administrative Law Judge of the State Office
of Administrative Hearings ("SOAH") commented in opposition to the adoption
of certain parts of the proposed chapter 519.
Ms. Taylor objected to proposed new §519.40(a) because it appoints
SOAH as the Board’s fact finder. She states that SOAH is the fact finder
for all parties, not just the Board. In response, the Board agrees. However, §901.508
of the Public Accountancy Act requires the Board to offer a person against
whom it proposes to take disciplinary action a hearing either before the Board
or a hearings officer appointed by the Board. Rather than conduct the required
hearings before the Board, the Board elected to appoint SOAH as the Board’s
hearing officer, which is a reflection of current Board practice. SOAH is
a neutral forum and provides a level playing field to both complainants and
the general public, whose interests are represented by Board staff because
they are not parties to the hearing, and respondents, who represent their
own interests.
Ms. Taylor notes that proposed §519.40(b) states that SOAH obtains
jurisdiction over a matter referred to it by the Board upon the filing of
a complaint with SOAH, but SOAH rule 155.7(b) states that SOAH acquires jurisdiction
over a referred matter when an agency files a request to docket case. In response,
proposed §519.40(b) was changed to provide that SOAH obtains jurisdiction
over a matter referred to it by the Board upon the filing of a request to
docket case with SOAH to make the board’s rule consistent with SOAH’s
rule.
Ms. Taylor objected to language in proposed new §519.44(a) that requires
an Administrative Law Judge ("ALJ") to grant a motion for remand to the Board
upon motion of Board staff in cases where a respondent has failed to file
a timely written answer. She states current SOAH rules that allow a continuance
are sufficient to address the situation and that the Board’s proposed
language mandating the granting of a motion to remand constitutes undue influence
on the independence of an ALJ. She does not object to the concept of a default
for the failure to file a written answer and notes that other agencies employ
this device successfully. The Board intends the remand device, which is routinely
employed in litigation in the judicial branch, as a mechanism to remove the
matter from SOAH’s docket while the Board is taking final action on
the matter. It is viewed as assisting SOAH with its disposition statistics
on case resolution by removing the months it takes to present the default
to the Board for final resolution from SOAH’s docket. Additionally,
remand avoids the unnecessary paperwork of filing a periodic status report,
as required by SOAH, for cases that remain pending on its docket. The remand
procedure is a measure to conserve scarce resources and enhances judicial
economy. To avoid any appearance of undue supervision of ALJs, the Board will
delete the second sentence which states "(t)he ALJ shall grant any motion
by the board to remand the matter to the board for final disposition" and
substitute with "(u)pon failure to timely file a written answer, the board
will give notice of its intent to dispose of the matter based upon the allegations
contained in the complaint or amended complaint to SOAH and the parties by
filing a motion for remand to the board for final disposition." This removes
the mandatory language regarding the ALJ’s actions, but preserves the
remand procedure which eliminates the necessity for the matter to remain on
SOAH’s docket and the filing of status reports.
Ms. Taylor noted that proposed new §519.45 "could be interpreted as
instructions or limitations on the ALJs regarding discovery matters." The
proposed rule is intended to supplement gaps in SOAH’s rules regarding
discovery by placing reasonable limits on discovery. Subsection (a) limits
discovery to matters relevant and material to matters within the Board’s
jurisdiction, or at least designed to lead to such matters. This language
tracks both the state and federal rules of civil procedure. Subsection (b)
also tracks state and federal rules of civil procedure and requires the disclosure
of basic information in a timely manner. Subsection (c) makes widely recognized
discovery tools available to the parties in accordance with the Act and the
Board’s and SOAH’s rules. Subsection (d) simply makes the cost
allocation principles for making copies already contained in Board rule 501.93
applicable to copies made in response to a request for production made in
discovery. Subsections (e) and (f) address the taking and use of depositions
and require them to be completed no later than 30 days prior to the final
hearing on the merits. This is to require the parties to prepare their cases
reasonably well in advance of the scheduled hearing date and prevent "trial
by ambush", where one party intentionally fails to disclose relevant information
to the other party in order to gain an advantage. Subsection (g) addresses
the failure of a party to comply with a discovery request and does mandate,
that after notice and hearing, the ALJ make such orders as are just. This
is not viewed as infringing upon the independence of ALJs. The provision does
go on to provide several remedies from which the ALJ may choose to remedy
the discovery abuse. Because the "shall" could be interpreted to require the
ALJ to order one or more of the listed remedies, the word "may" was inserted
so that the phrase states "...the ALJ shall, after notice and hearing, make
such orders in regard to the failure as are just, and may issue one or more
of the following orders..." Subsection (h) allows a party to avoid sanctions
for discovery abuse upon a showing of good cause. Subsections (i) and (k)
allow the discovery requirements to be modified by agreement of the parties
or, if agreement cannot be reached, by motion upon showing good cause and
lack of harm to the opposing party. Subsection (j) sets a discovery cutoff
of 30 days prior to the final hearing on the merits to encourage the parties
to timely prepare for the final hearing. SOAH currently has no such discovery
cutoff, thus a motion for scheduling order must be filed in every case. By
setting a reasonable cutoff time, the necessity to file a motion for scheduling
order in every case is eliminated. A motion is required only if a party seeks
to change the discovery cutoff and the parties cannot reach agreement as to
the appropriate cutoff. Subsection (l) simply imposes a duty on the parties
to supplement discovery responses based on newly discovered information. None
of the discovery provisions infringes upon the independence of the ALJs, but
rather sets rules for the orderly progress of discovery in all cases, thereby
requiring the intervention of an ALJ only in unusual cases instead of in every
case.
Ms. Taylor is concerned that §§519.48, 519.49, 519.50 and 519.51
"attempt to dictate the manner in which ALJs conduct contested case hearings."
In response to her comments, these rules are designed to provide for the orderly
conduct of the hearing and prevent trial by ambush. They are not meant to
unduly restrict the evidence available to the ALJ or to put a party at a disadvantage
who, for reasons beyond his control, locates newly discovered evidence after
the deadlines have passed. As Ms. Taylor noted in her comments, SOAH’s
continuance procedure is available to anyone finding his evidence excluded
due to failure to timely comply with the Board’s rules through no fault
of his own. The prevention of trial by ambush is worth the occasional continuance
necessitated to allow compliance with the Board’s rules.
Ms. Taylor is concerned that §§519.48- 519.51 will be disruptive
of the mass hearing process. To the contrary, because of the remand to the
Board for final disposition after the failure to file a written answer provision,
it is anticipated that mass hearings will be virtually eliminated. Mass hearings
are used to address those who fail to pay license fee renewals, fail to report
the required amount of Continuing Professional Education ("CPE") or fail to
complete their license renewal notice. The goal is compliance, thus if at
any time prior to the Board order a respondent comes into compliance, he is
removed from the mass hearing process. It is extremely rare that a respondent
will file a written answer without coming into compliance. It is therefore
anticipated that the rules requiring exchange of witness lists and exhibits
prior to hearing will have no significant impact on mass hearings.
Rule 519.48 is modeled after federal local rules and allows the parties
and the ALJ to accurately assess the amount of time the case will take based
on the number of witnesses. Subsection 519.48(a) requires a party to designate
his expert witnesses within 20 days of receipt of a written request to do
so; however, the ALJ may modify this requirement upon motion showing good
cause. All experts must be designated no later than 60 days prior to the final
hearing date and made available for deposition before the end of the discovery
period. SOAH’s rules do not contain a cutoff for the designation of
experts. Under SOAH’s rules, a motion for a scheduling order that requests
a cutoff date for the designation of experts must be filed in every case.
The proposed new rule eliminates the necessity for a motion followed by a
hearing and order, thus promoting judicial economy and conserving scarce resources.
Requiring the parties to disclose witnesses in response to a discovery request
in order to make them eligible to testify tracks state and federal civil procedure.
Also, requiring a party to designate the portions of a deposition transcript
he plans to offer into evidence in lieu of live testimony reduces the size
of the record by eliminating unnecessary portions of the transcript.
Rule 519.49 is also modeled after federal rules and is designed to shorten
trial time by organizing and marking all exhibits prior to trial and requiring
written objections to facilitate the ALJs’ decisions regarding admissibility.
By making admission of all exhibits the first order of business, all parties
can examine any witness regarding any exhibit. This eliminates the necessity
of recalling a witness to discuss an exhibit that was not admitted while the
witness was on the stand and required the testimony of another witness to
make the exhibit admissible. It also eliminates the potential for inadvertent
errors by counsel for any party, and particularly the self represented respondent,
who may forget to move for admission of an exhibit or obtain a ruling thereon.
Ms. Taylor is concerned that the admonition to admit all exhibits to which
there has been no objection could lead to the admission of duplicitous, irrelevant
or immaterial exhibits and that this will unnecessarily clutter the record.
The Board added language to the rule to limit the admission of exhibits to
which there was no objection to those "that are not duplicitous, irrelevant
or immaterial." Ms. Taylor notes that proposed new Board rule 519.51(a) already
excludes irrelevant, immaterial or unduly repetitious evidence.
Proposed new §519.50 merely makes provision for a transcript of the
hearing and allocates the cost for the transcript. SOAH does not provide a
traditional court reporter to transcribe hearings, but rather simply records
the hearing on a tape that the parties can then have transcribed if needed.
Due to equipment failures and human error, the tapes are not always the most
accurate and complete record. Therefore the proposed new rule also makes provision
for correction of the transcript.
Proposed new §519.51 addresses evidence and adopts the standards set
forth in the Administrative Procedure Act ("APA"). The rule goes on to make
provision for a proffer of excluded evidence to allow a complete record for
the Board’s consideration and for any subsequent appeal.
Ms. Taylor is concerned about the dismissal provisions contained in proposed
new §519.53. She notes that the rule allows the Board to dismiss even
after "issuance of a proposal for decision if the matter is currently pending
at SOAH." She states that "...once a proposal for decision is issued, (SOAH)
loses jurisdiction in a matter...", although it retains limited jurisdiction
to resolve exceptions to a proposal for decision. In response, the phrase
"if the matter is currently pending at SOAH" was deleted to eliminate the
implication that SOAH retains jurisdiction after a proposal for decision is
issued in a matter. She is also concerned that the last sentence of the section
that prohibits the Board from imposing a disciplinary sanction on a respondent
based on a dismissed matter could be interpreted to mean that the Board cannot
re-file the matter and impose a disciplinary sanction based on the re-filed
case. In response, the Board agrees and deleted the last sentence of §519.53.
The intent was to assure respondents that a sanction will not be imposed based
on a dismissed case, but rather the case must be re-filed and prosecuted to
completion or resolved by agreement prior to the imposition of a disciplinary
sanction.
Ms. Taylor is also concerned that proposed new §519.53 infringes on
the independence of the ALJs by requiring them to enter an order of dismissal
without prejudice upon the request of the Board. Both federal and state rules
allow a plaintiff to dismiss a case without cause, provided there is no counter-claim
pending. In state courts, the dismissal is presumed to be without prejudice
to the re-filing of the case. Although SOAH’s rule 155.56 addresses
dismissals, it makes no provision for a traditional dismissal without cause.
ALJs can dismiss for want of prosecution, lack of jurisdiction, lack of authorization,
mootness, failure to state a claim on which relief can be granted, unnecessary
duplication of proceedings or settlement of the claims. Proposed new §519.53
is designed to give the Board the traditional right of dismissal without cause
and without prejudice to re-filing.
Ms. Taylor is concerned that Board staff will misuse the dismissal provision
to get a preview of a respondent’s case, then dismiss after trial, shore-up
weaknesses in the Board’s case and re-file. She suggests that such a
course raises "issues of due process, fairness, and harassment, along with
issues of judicial economy and efficiency." In response, Ms. Taylor’s
mistrust of Board staff is unwarranted. The Legislature has entrusted the
Board with enforcement of the Act. To effectively discharge that trust, the
Board must be able to develop a record of facts on which to base a determination
of a violation. Because the Board is not as well equipped to resolve contested
facts as a formal tribunal, the Legislature gave the Board the option of appointing
a hearings officer to develop the factual record and assist the Board in applying
the law to the facts developed. Matters brought to SOAH for resolution have
first been considered by an enforcement committee of the Board. These matters
are only brought to SOAH when the respondent and the enforcement committee
cannot agree on the correct state of the facts or the correct disposition
of the matter. Board staff follows the direction of an enforcement committee
and is present at the hearing to assist in making a full and fair record on
which the ALJ can base his recommendation and the Board can ultimately base
its decision. The abuse of process that Ms. Taylor fears, although possible,
is not probable given the expanded chapter 519 which is designed to prohibit
trial by ambush, and thus eliminate the need for exploring weaknesses at trial.
Re-trying a matter does not raise issues of due process, but rather of double
jeopardy, which only apply in criminal cases. Whether a re-trial is unfair
or harassing depends upon the reasons for the re-trial. As noted above, staff
works at the direction of an enforcement committee. An enforcement committee
would not pursue a re-trial if to do so would be unwarranted harassment of
the respondent or patently unfair to the respondent. It is more likely that
to not pursue a re-trial would be patently unfair to the complainant and the
public. It will be up to the enforcement committee to balance these interests
in the rare instances in which a dismissal results in the need for a re-trial.
Ms. Taylor notes that section 2003.050 states that an agency’s procedural
rules govern a proceeding at SOAH only to the extent that SOAH enacts a rule
adopting that agency’s rules by reference. She states it is unlikely
she would enact such a rule to preserve uniformity across all state agencies.
In response, Ms. Taylor is correct that she has rarely recognized another
agency’s rules. She declined to adopt many more agency’s rules,
including those of the Texas Board of Medical Examiners and the Texas Department
of Insurance, the two agencies upon whose rules the Board has modeled the
proposed new chapter 519. As noted at the beginning of this response, the
Board, as do all state agencies, has a duty to enact rules of practice pursuant
to section 2001.004 of the Government Code. The ALJs who conduct hearings
for the Board are required to consider the Board’s rules and written
polices when conducting a hearing on its behalf pursuant to section 2001.058
of the Texas Government. Chapter 519 has been carefully considered and designed
to avoid conflicts with SOAH’s rules. The Board’s rules are intended
to fill in gaps in SOAH’s rules and procedures to streamline the process
for all participants. The necessity for numerous motions to fill in gaps in
SOAH’s rules is eliminated in most instances. This replaces the uncertainty
of a case by case scheduling order with a uniform procedure that ensures fairness
to all of the participants. ALJs should have no difficulty in following the
Board’s rules of practice and procedure.
The Board understands and appreciates the mandate of SOAH to remain independent
from the boards it serves and the duty of an ALJ to remain free from supervision,
direction and indirect influence of the state agency for whom they are serving
as a neutral fact finder. The Board’s proposed rules are not intended
to exert undue influence on ALJs, but rather are intended to put current Board
practice into a written policy to be followed by complainants and respondents
alike to assure that all sides receive a fair hearing. In fact, the Board
has a legislated command to promulgate such rules. Section 2001.004 of the
Government Code provides that "a state agency shall (1) adopt rules of practice
stating the nature and requirements of all available formal and informal procedures...".
Chapter 519 serves that purpose for the Board. Section 2001.039 of the Government
Code requires every state agency to conduct a comprehensive review of its
rules at least once every four years. The proposed amendments and additions
to chapter 519 are a part of that rule review.
Rule review requires the Board to address several questions when it considers
its existing rules: Is the rule needed to fairly administer and justly enforce
the Act? Does the rule reflect current Board policy and interpretations of
the Act? Does the rule reflect current Board procedure?
The Board finds that chapter 519 is in need of substantial revision to
ensure the fair administration and just enforcement of the Act. Additionally,
the Board finds that numerous Board policies and procedures were not present
in the existing chapter 519 and it is necessary to adopt significant changes
to Chapter 519 to include the omitted policies and procedures in conformity
with Sections 2001.004 and 2001.039 of the Government Code.
The new rules are adopted under the Public Accountancy Act ("Act"),
Texas Occupations Code, §901.151 which provides the agency with the authority
to amend, adopt and repeal rules deemed necessary or advisable to effectuate
the Act, §2001.039 of the Government Code Chapter 2001 (Administrative
Procedure Act) that requires that each state agency review and consider for
readoption each rule adopted by that agency and §519.43 is also proposed
under §901.5045 of the Act regarding Emergency Suspension.
No other article, statute or code is affected by these adoptions.
§519.40.General Provisions.
(a)
The board appoints SOAH to be its finder of fact in contested
cases pursuant to section 901.508 of the Act. The board does not delegate
to the ALJ and retains for itself the right to make the final decision in
any contested case.
(b)
SOAH hearings of contested cases shall be conducted in
accordance with the APA by an ALJ assigned by SOAH. Jurisdiction over the
case is acquired by SOAH when the board staff files a request to docket case.
§519.44.Default.
(a)
The failure of the Respondent to timely file a written
response as provided in §519.41(c) of this title (relating to Pleadings
in Contested Cases) shall constitute a waiver of the right to a hearing and
entitles the board to render a final order disposing of the complaint without
further hearing. In such instances, the factual and legal allegations contained
in the complaint or amended complaint shall be deemed by the board to be true
and the board shall act accordingly.
(b)
Failure of the Respondent to appear in person or by legal
representative on the day and at the time set for a final hearing on the merits
of a contested case, regardless of whether a written response has been filed,
shall entitle the board to a default judgment.
(c)
After remand to the board upon default or entry of a default
judgment by the ALJ, the Respondent may file a motion to set aside the remand
or default order and reopen the record. The motion to set aside the remand
or default judgment shall be granted if the Respondent establishes that the
failure to file a written response or to attend the hearing was neither intentional
nor the result of conscious indifference, and that such failure was due to
a mistake or accident.
§519.45.Discovery.
(a)
Matters subject to discovery are limited to those that
are relevant and material to, or reasonably calculated to lead to the discovery
of matters relevant and material to, issues within the board’s jurisdiction
as set out in the Act.
(b)
Not later than 20 days after receiving a written request
from an opposing party, the responding party shall provide to the requesting
party the following information:
(1)
the correct names of the parties to the lawsuit;
(2)
the name, address, and telephone number of any potential
parties;
(3)
the legal theories and, in general, the factual bases of
the responding party’s claims or defenses;
(4)
the name, address, and telephone number of persons having
knowledge of relevant facts, and a brief statement of each identified person's
connection with the case;
(5)
for any testifying expert:
(A)
the expert’s name, address, and telephone number;
(B)
the subject matter on which the expert will testify;
(C)
the general substance of the expert's mental impressions
and opinions and a brief summary of the basis for them, or if the expert is
not retained by, employed by, or otherwise subject to the control of the responding
party, documents reflecting such information; and
(D)
if the expert is retained by, employed by, or otherwise
subject to the control of the responding party:
(i)
all documents, tangible things, reports, models, or data
compilations that have been provided to, reviewed by, or prepared by or for
the expert in anticipation of the expert's testimony; and
(ii)
the expert’s current resume and bibliography;
(6)
any witness statements.
(c)
The parties may use the following methods of discovery:
(1)
requests for admissions and genuineness of documents as
permitted by SOAH’s rules:
(2)
interrogatories as permitted by SOAH’s rules, which
must be sworn to in accordance with Texas Rule of Civil Procedure 197.2;
(3)
requests for production as permitted by SOAH’s rules;
(4)
deposition on written questions as provided for in the
Texas Rules of Civil Procedure;
(5)
oral depositions taken in accordance with the Act and the
board’s rules; and
(6)
other forms of discovery as provided for in the APA and
SOAH’s rules.
(d)
The board may request production of documents and tangible
items that are identified in a discovery response, but a copy of which was
not provided with the response, in accordance with §501.93 of this title
(relating to Responses). The board shall make available requested documents
and tangible items which it has no objection to providing for inspection and
copying at the board’s offices. The board, in its sole discretion, may
provide a copy of the requested documents and tangible items for a reasonable
charge.
(e)
The taking and use of depositions shall be governed by
the APA or by an agreement between the parties either on the record or in
a writing signed by the parties or their representatives. Except by an agreement
between the parties either on the record or in a writing signed by the parties
or their representatives or by order of the ALJ, depositions shall be conducted
and completed no later than 30 days prior to the scheduled hearing date. Failure
of a properly noticed witness who is a party to the case to attend a deposition
for the purpose of taking the testimony of that party witness, or the failure
of such a witness to attend such a deposition as agreed to by the parties
on the record or in a writing signed by the parties or their representatives,
may result in the imposition of the sanctions and remedies set forth in paragraph
(g) of this section.
(f)
In the event that, as provided for in the APA, an original
deposition transcript is not returned by a deponent or a deponent's counsel,
or is not filed by a deponent, a deponent’s counsel, or other individual,
officer, or entity in possession of or last known to be in possession of the
original transcript, a party to the contested case pending before SOAH shall
be entitled to have a certified true copy of the deposition transcript filed
under seal at the board by the officer or a court reporter who transcribed
the deposition testimony or their designee. Such a copy shall be presumed
to be authentic unless an objecting party is able to rebut such a presumption
by a preponderance of competent evidence.
(g)
In the event of a failure by a party to comply with a discovery
request, to the extent required by the board’s rules, SOAH’s rules,
the APA, or as agreed to between the parties in a discovery agreement, the
ALJ shall, after notice and hearing, make such orders in regard to the failure
as are just, and may issue one or more of the following orders:
(1)
an order granting a continuance;
(2)
an order limiting or restricting the admissibility and
use of evidence, to include exclusion of evidence or testimony;
(3)
an order requiring the non-compliant party to pay the requesting
party’s attorney’s fees, hearing and court reporter costs, and
actual costs for participation in the discovery process, incurred as a result
of a failure of the non-compliant party to abide by the discovery requirements;
(4)
an order imposing a scheduling order providing for discovery
deadlines necessary to remedy the failure to comply with discovery requirements
under the board’s rules;
(5)
an order for remedies and sanctions agreed to by the parties
in writing or on the record;
(6)
an order disallowing further discovery of any kind or of
a particular kind by the offending party;
(7)
an order holding that designated facts be considered admitted
for purposes of the proceeding;
(8)
an order refusing to allow the offending party to support
or oppose a designated claim or defense or prohibiting the party from introducing
designated matters into evidence;
(9)
an order disallowing in whole or in part requests for relief
by the offending party and excluding evidence in support of those requests;
or
(10)
an order striking pleadings or testimony, or both, in
whole or in part.
(h)
A showing of good cause for failure to comply with a discovery
request to the extent required by the board’s rules, SOAH’s rules,
the APA, or as agreed to between the parties in a discovery agreement, may
justify the imposition of less severe remedies or sanctions which might otherwise
be imposed. Good cause shall include but is not limited to the following:
(1)
lack of knowledge of the existence of the information or
material;
(2)
lack of access to or control of the information or material;
and
(3)
act of nature.
(i)
The discovery requirements governing SOAH proceedings may
be modified by agreement of the parties either on the record or in writing
signed by the parties or their representatives without approval of an ALJ.
(j)
All discovery shall be completed no later than 30 days
before the date set for a final hearing on the merits. All discovery requests
shall be served in a timely manner to allow for a timely response prior to
the end of the discovery period.
(k)
The discovery requirements and time limitations set by
the board’s rules and SOAH’s rules may be modified by the ALJ
only upon a showing of good cause and lack of harm to the opposing party made
pursuant to the motion of the party seeking the modification.
(l)
Upon receiving new information or material, or upon otherwise
determining that an inaccuracy exists in a previous discovery response, each
party shall supplement such responses as soon as practicable.
§519.49.Exhibits.
(a)
All exhibits that a party intends to offer at the final
hearing, except those offered solely for impeachment, must be marked with
a label that identifies the exhibit by the number under which it will be offered
at the final hearing and must be exchanged with the opposing parties not later
than the tenth day before the date scheduled for the final hearing. At least
ten days before the date scheduled for the final hearing, each party must
file with SOAH and deliver to the opposing parties a separate list of the
exhibits to be offered at the final hearing, separately identifying those
which the party expects to offer and those which the party may offer if the
need arises.
(b)
Objections to the admissibility of exhibits must be made
at least five days before the final hearing by filing written objections with
SOAH that include copies of the disputed exhibits and authority to support
the objection. The opposing parties may file a written response with SOAH
that includes authority to support the admission of the disputed exhibits.
At the beginning of the final hearing the ALJ shall admit all timely exchanged
and listed exhibits of any party to which there has been no objection that
are not duplicitous, irrelevant or immaterial and rule on the objections to
the admission of exhibits. If at any time during the hearing it becomes apparent
that the initial ruling on an objection was incorrect, the ALJ on his own
motion, or the motion of any party may re-consider the initial ruling and
admit or exclude the disputed exhibit. Failure to timely object to an exhibit
in writing under this subsection concedes the authenticity of the exhibit.
§519.53.Dismissal by the Board.
The board may dismiss a complaint at any time, even after hearing or
issuance of a proposal for decision. The dismissal is effective immediately
upon the board giving notice of the dismissal. If the matter is pending at
SOAH at the time of the dismissal, the board shall file the notice of dismissal
with SOAH and the ALJ assigned to the matter shall promptly enter an order
of dismissal without prejudice.
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 May 20, 2004.
TRD-200403423
Rande Herrell
General Counsel
Texas State Board of Public Accountancy
Effective date: June 9, 2004
Proposal publication date: April 2, 2004
For further information, please call: (512) 305-7848
Chapter 3.
LANDSCAPE ARCHITECTS
Chapter 5.
INTERIOR DESIGNERS
Part 10.
TEXAS FUNERAL SERVICE COMMISSION
Chapter 207.
ALTERNATIVE DISPUTE RESOLUTION
Part 21.
TEXAS STATE BOARD OF EXAMINERS OF PSYCHOLOGISTS
Part 22.
TEXAS STATE BOARD OF PUBLIC ACCOUNTANCY
Subchapter D. RESPONSIBILITIES TO THE PUBLIC
Chapter 509.
RULEMAKING PROCEDURES
Chapter 518.
UNAUTHORIZED PRACTICE OF PUBLIC ACCOUNTANCY
Chapter 519.
PRACTICE AND PROCEDURE
Chapter 519.
PRACTICE AND PROCEDURE
Subchapter B. COMPLAINTS AND INVESTIGATIONS
Subchapter C. PROCEEDINGS AT SOAH
Subchapter D. PROCEDURES AFTER HEARING