22 TAC §575.27
The Texas Board of Veterinary Medical Examiners ("Board")
proposes amendments to §575.27, concerning Complaints--Receipt, Investigation
and Disposition. This section sets out the process by which the Board receives
and processes complaints against veterinarians. The amendments address a situation
where a complaint has reached the stage of a contested case before the State
Office of Administrative Hearings (SOAH). If a complaint is referred to SOAH,
the amendments clarify that a complaint affidavit and notice of hearing must
be served on the respondent licensee. The Board must send notice of a contested
case to the licensee's last known address as listed in the agency's records.
In accordance with SOAH procedures, if a licensee receives notice and fails
to appear at the contested case hearing, the Board is entitled to a default
proposal for decision from SOAH in favor of the Board. The amended section
clarifies the procedures for notice in contested cases and provides a remedy
for failure to respond to a notice of hearing, thus improving the efficiency
of the entire hearing process.
Ron Allen, Executive Director, has determined that for the first five-year
period the amended section is in effect there will be no fiscal implications
for state or local government as a result of enforcing or administering the
amended section.
Mr. Allen has also determined that for the first five years the amended
section is in effect the public benefit anticipated as a result of enforcing
the amended section will be to increase the public's understanding of the
Board's contested hearing process and provide for an efficient remedy if the
procedures are not followed. There will be no effect on small or micro businesses.
There is no anticipated economic cost to persons who are required to comply
with the amended section as proposed.
Comments on the proposed amendments may be submitted in writing to Julie
Barker, Texas Board of Veterinary Medical Examiners, 333 Guadalupe, Suite
3-810, Austin, Texas 78701, phone (512) 305-7555, fax (512) 305-7556, and
must be received by February 20, 2005.
The amendments are proposed under the authority of the Veterinary
Licensing Act, Occupations Code, §801.151(a), which states that the Board
may adopt rules necessary to administer the chapter.
The amendments affect the Veterinary Licensing Act, Occupations Code, §801.203
and §801.206 relating to complaints, and the Government Code, §2001.051
relating to notice of contested cases.
§575.27.Complaints--Receipt, Investigation and Disposition.
(a) - (d)
(No change.)
(e)
Contested case
[
Administrative law
]
hearing
(1)
If
a
[
the
] licensee declines the
board's settlement offer, or if the licensee fails to respond timely to the
offer, or if the board rejects a proposed agreed order, the investigator of
the complaint shall prepare a complaint affidavit containing the [
complaint
] allegations
against the licensee
. The signed and notarized
complaint affidavit will then be reviewed by the board's legal counsel and
signed by the executive director. The date the executive director signs the
complaint affidavit is the official date of filing the complaint affidavit
with the board.
The complaint affidavit shall serve as the board's pleading
in a contested case. At least ten (10) days prior to a scheduled hearing,
the
[
The
] complaint affidavit
and notice of hearing
shall be
[
is then
] served on the licensee
as set out
in paragraph (3)(A) of this subsection
[
by certified mail or personal
service at least ten (10) days prior to a scheduled hearing
].
(2)
The executive director shall submit to the State Office
of Administrative Hearings (SOAH) a completed Request to Docket Case requesting
SOAH to set a hearing and/or assign an administrative law judge to the
contested case
[
complaint
]. The board shall provide notice
of the time, date, and place of the hearing to the licensee. Following issuance
of a proposal for decision by the administrative law judge, the board by order
may find that a violation has occurred and impose disciplinary action, or
find that no violation has occurred. The board shall promptly advise the complainant
of the board's action.
(3)
Notice of SOAH hearing; continuance and
default
(A)
The board shall send notice of a contested case hearing
before SOAH to the licensee's last known address as evidenced by the records
of the board. Notice shall be sent by first class mail, certified or registered
mail, or by personal service.
(B)
If the licensee fails to timely enter an appearance or
answer to the notice of hearing of the contested case, the board may request
a continuance at the time of the hearing. If the licensee fails to appear
at the time of hearing of the contested case, the board may move either for
dismissal of the case from the SOAH docket, or request issuance of a default
proposal for decision or order by the administrative law judge.
(f) - (h)
(No change.)
This agency hereby certifies that the proposal has been reviewed
by legal counsel and found to be within the agency's legal authority to adopt.
Filed with the Office of
the Secretary of State on January 6, 2005.
TRD-200500069
Julie A. Barker
Executive Assistant
Texas Board of Veterinary Medical Examiners
Earliest possible date of adoption: February 20, 2005
For further information, please call: (512) 305-7555