PART 6. TEXAS BOARD OF PROFESSIONAL ENGINEERS
CHAPTER 137. COMPLIANCE AND PROFESSIONALISM
SUBCHAPTER A. INDIVIDUAL AND ENGINEER COMPLIANCE
The Texas Board of Professional Engineers adopts an amendment to §137.13, relating to Inactive Status, without changes to the proposed text as published in the March 28, 2008, issue of the Texas Register (33 TexReg 2635) and will not be republished.
The adopted rule change would not require a license holder who is filing for inactive status to pay the $200 fee increase as provided under the Texas Engineering Practices Act, Texas Occupations Code §1001.206.
No comments were received regarding the Board's adoption of the amended section.
The amendment is adopted pursuant to the Texas Engineering Practice Act, Occupations Code §1001.202, which authorizes the board to make and enforce all rules and regulations and bylaws consistent with the Act as necessary for the performance of its duties, the governance of its own proceedings, and the regulation of the practice of engineering in this state; Occupations Code §1001.206 exempting licensees in Inactive Status from paying the fee increase; and Occupations Code §1001.355 providing for an Inactive Status for license holders.
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 June 30, 2008.
TRD-200803387
Dale Beebe Farrow, P.E.
Executive Director
Texas Board of Professional Engineers
Effective date: July 20, 2008
Proposal publication date: March 28, 2008
For further information, please call: (512) 440-7723
SUBCHAPTER C. LICENSE RENEWALS
The Texas Board of Veterinary Medical Examiners adopts new §571.57, regarding the Board's ability to first apply any monetary funds sent to the Board to any outstanding administrative penalties for the licensee, without changes to the proposed text as published in the March 28, 2008, issue of the Texas Register (33 TexReg 2637) and will not be republished.
New §571.57 allows the Board to first apply any monetary funds sent to the Board to any outstanding administrative penalties for the licensee. The Board is seeking to ensure payment of administrative penalties assessed by the Board without spending additional state resources.
No comments were received regarding adoption of the new rule.
The new rule is adopted under the authority of the Veterinary Licensing Act, Occupations Code, §801.151(a) that authorizes the Board to adopt rules necessary to administer the chapter. Texas Occupations Code, Chapter 801, is affected by this new rule.
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 June 23, 2008.
TRD-200803288
Loris Jones
Executive Assistant
Texas Board of Veterinary Medical Examiners
Effective date: July 13, 2008
Proposal publication date: March 28, 2008
For further information, please call: (512) 305-7563
SUBCHAPTER F. RECORDS KEEPING
The Texas Board of Veterinary Medical Examiners adopts an amendment to §573.51, regarding rabies control, without changes to the proposed text as published in the March 28, 2008, issue of the Texas Register (33 TexReg 2638) and will not be republished.
The adopted amendment to §573.51 would require a veterinarian that issues a rabies vaccination certificate or the veterinary practice where the certificate was issued to retain a readily retrievable copy of the certificate. The adopted amendment conforms the Board's rule to the current practice and policy of the Board where the veterinary practice may keep the certificate if the certificate was issued there and the client has not transferred when a veterinarian leaves the veterinary practice.
One individual commented that the Board's amendment is redundant to the Department of State Health Services rule, adding to the ever-increasing volume of regulations. The proposed amendment is not a new regulation the Board is adding but rather a clarification of a rule already in place and conforming the rule to the Board's current practice and policy.
The amendment is adopted under the authority of the Veterinary Licensing Act, Occupations Code, §801.151(a) that authorizes the Board to adopt rules necessary to administer the chapter. Texas Occupations Code, Chapter 801, is affected by this amendment.
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 June 23, 2008.
TRD-200803289
Loris Jones
Executive Assistant
Texas Board of Veterinary Medical Examiners
Effective date: July 13, 2008
Proposal publication date: March 28, 2008
For further information, please call: (512) 305-7563
The Texas Board of Veterinary Medical Examiners adopts an amendment to §573.62, regarding the violation of Board orders or negotiated settlements, without changes to the proposed text as published in the March 28, 2008, issue of the Texas Register (33 TexReg 2638) and will not be republished.
The adopted amendment to §573.62 authorizes the Board to deny a request to renew a license if the licensee has not paid a final administrative penalty. The adopted amendment also lays out the circumstances where the rule does not apply. The Board is seeking to ensure payment of administrative penalties assessed by the Board without spending additional state resources.
No comments were received regarding adoption of the proposed amendment.
The amendment is adopted under the authority of the Veterinary Licensing Act, Occupations Code, §801.151(a) that authorizes the Board to adopt rules necessary to administer the chapter. Texas Occupations Code, Chapter 801, is affected by this amendment.
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 June 23, 2008.
TRD-200803290
Loris Jones
Executive Assistant
Texas Board of Veterinary Medical Examiners
Effective date: July 13, 2008
Proposal publication date: March 28, 2008
For further information, please call: (512) 305-7563
The Texas Board of Veterinary Medical Examiners adopts the repeal of §573.67, regarding temporary license suspensions, without changes to the proposed text as published in the March 28, 2008, issue of the Texas Register (33 TexReg 2639) and will not be republished.
The repeal of §573.67 is in conjunction with adopted new §575.35 as part of the agency rule review of Chapter 575. The repeal will allow for better organization of Chapter 573 and Chapter 575 of the Board's rules. The subject matter regarding temporary license suspensions is addressed in adopted new §575.35. Chapter 575 generally discusses the practice and procedure rules for the Board, and therefore is a more appropriate place for a rule regarding temporary license suspensions.
No comments were received regarding repeal of the rule.
The repeal is adopted under the authority of the Veterinary Licensing Act, Occupations Code, §801.151(a) that authorizes the Board to adopt rules necessary to administer the chapter. Texas Occupations Code, Chapter 801, is affected by this repeal.
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 June 23, 2008.
TRD-200803291
Loris Jones
Executive Assistant
Texas Board of Veterinary Medical Examiners
Effective date: July 13, 2008
Proposal publication date: March 28, 2008
For further information, please call: (512) 305-7563
The Texas Board of Veterinary Medical Examiners adopts the repeal of §573.77, regarding cease and desist procedures, without changes to the proposed text as published in the March 28, 2008, issue of the Texas Register (33 TexReg 2640) and will not be republished.
The repeal of §573.77 is in conjunction with adopted new §575.50 as part of the agency rule review of Chapter 575. The repeal will allow for better organization of Chapter 573 and Chapter 575 of the Board's rules. The subject matter regarding cease and desist procedures is addressed in adopted new §575.50. Chapter 575 generally discusses the practice and procedure rules for the Board, and therefore is a more appropriate place for a rule regarding cease and desist procedures.
No comments were received regarding repeal of the rule.
The repeal is adopted under the authority of the Veterinary Licensing Act, Occupations Code, §801.151(a) that authorizes the Board to adopt rules necessary to administer the chapter. Texas Occupations Code, Chapter 801, is affected by this repeal.
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 June 23, 2008.
TRD-200803292
Loris Jones
Executive Assistant
Texas Board of Veterinary Medical Examiners
Effective date: July 13, 2008
Proposal publication date: March 28, 2008
For further information, please call: (512) 305-7563
The Texas Board of Veterinary Medical Examiners (Board) adopts amendments to §§575.2 - 575.6, 575.22, and 575.27, new §§575.7 - 575.10, 575.28 - 575.30, 575.35, 575.40, 575.50, 575.60, and 575.62, and the repeal of §§575.7 and 575.30 - 575.32, concerning practice and procedure provisions. Sections 575.2 - 575.6, 575.22, 575.27, 575.8 - 575.10, 575.28 - 575.30, 575.35, 575.40, 575.60, 575.62, and the repeal of 575.7 and 575.30 - 575.32 are adopted without changes to the proposed text as published in the March 28, 2008, issue of the Texas Register (33 TexReg 2642) and will not be republished. New §575.7 and §575.50 are adopted with changes to the proposed text as published in the March 28, 2008, issue of the Texas Register (33 TexReg 2642). The text of the rules will be republished.
The adopted amendments, new rules, and repeals result from the Board's rule review conducted in accordance with Texas Government Code, §2001.039.
Elsewhere in this issue of the Texas Register, the Texas Board of Veterinary Medical Examiners adopts the rule review of Chapter 575.
The Board adopts the following changes to Chapter 575 that clarifies the rules of practice and procedure before the Board, including but not limited to, contested case hearings, Board meetings, complaints, informal conferences, temporary license suspension proceedings, and cease and desist procedures.
Generally, a few comments were received regarding grammar corrections. The Board respectfully disagrees with the comments and finds that the language is clear as written. Also, a few comments were received objecting to several rules where the language was changed from directing the Executive Director to perform a certain task to allowing the Executive Director to assign a task to be performed to a staff member of the agency at the Executive Director's direction. The individuals commenting were concerned this would increase the power of the Executive Director beyond what is the current level. This language was inserted to allow the agency to perform tasks set forth in the Board's rules with maximum efficiency. This language does not increase the power of the Executive Director as the Executive Director under these rules was already assigned to perform these tasks. Instead, it would allow other members of the staff to perform some of these tasks if the Executive Director delegates the authority to those individuals for the sake of efficient use of agency resources.
The adopted amendment to §575.2 clarifies that items shall be filed with the Board office rather than specifically with the Executive Director, and shall be deemed received when received in the Board office rather than specifically received by the Executive Director. The Board is seeking to provide greater clarification that anyone may accept items filed in the Board office, rather than specifically the Executive Director in order to ensure the proper processing of the filed items without the intervention of the Executive Director, especially when the Executive Director is not available. This rule will allow more efficient use of staff resources to accomplish the goal of processing items filed with the Board.
The adopted amendment to §575.3 provides further clarification regarding the Board's procedure for counting days prescribed by this chapter or by a State Office of Administrative Hearings (SOAH) order, further clarification regarding the Board's procedure for disputes involving the computation of time and Board's procedure involving extensions of filing deadlines. The Board is seeking to provide greater clarification of the procedure for counting days as well as the procedure for disputes involving the computation of time and for requests for extensions of time.
Language is revised in §575.4 to provide gender inclusive language, with no substantive changes to the rule.
The adopted amendment to §575.5 provides further clarification regarding the procedures for a party to a contested case hearing to request a subpoena. In addition, the adopted amendments further define the means available to the Board to serve subpoenas. Also, the adopted amendments clarify the amount available for payment by the Board for a witness of the Board at a contested case hearing, as well as notes that the pendency of a SOAH proceeding does not preclude the Board from issuing an investigative subpoena at any time. The Board is seeking to provide greater clarification of the procedure for a party to request a subpoena, to make the process involving subpoenas more smooth for the parties involved. In addition, the amendments provide by rule the Board's access to other means available under the law to serve subpoenas. The Board also seeks with the amendments to conform to the current law regarding the payment of witness fees. Finally, the Board is seeking to keep open the option to issue an investigative subpoena at any time, to ensure the receipt of all information needed by the Board to make an informed decision regarding whether a violation of the Act or the Board's rules has occurred.
The adopted amendment to §575.6 provides gender inclusive language and deletes provisions regarding the Board's practice and procedure regarding final decisions and orders, and motions for rehearing, as these issues are addressed in new §575.8 and §575.9. The Board is seeking to better organize the rules under the rule review process to provide the public with easier access to the information under the Board's rules.
The Board repeals §575.7 regarding costs of appeal. The topic of costs of appeal are discussed in new §575.10. The Board adopts a new §575.7, outlining the presentation procedures for Proposals for Decisions in contested case hearings before the Board. The Board is seeking to better organize the rules under the rule review process to provide the public with easier access to the information under the Board's rules and to provide better clarification regarding the procedures for presentation of Proposal for Decision in contested case hearings before the Board.
Adopted new §575.8 outlines and clarifies the Board's practice and procedure regarding final decisions and orders, as previously addressed in §575.6. The Board is seeking to better organize the rules under the rule review process to provide the public easier access to the information under the Board's rules and provide clarification of the Board's practice and procedure regarding final decisions and orders.
Adopted new §575.9 outlines the procedure before the Board regarding motions for rehearing as previously addressed in §575.6. The Board is seeking to better organize the rules under the rule review process to provide the public with easier access to the information available under the Board's rules.
Adopted new §575.10 states the apportionment of costs in mediations and administrative hearings, appeals and related costs. The Board is seeking to better organize the rules under the rule review process to provide the public easier access to the information available under the Board's rules and clarify the authority of the Board to assess the costs of preparing the record for appeal to the party who appeals as authorized under the Administrative Procedures Act (APA), §2001.177, as well as other costs of the administrative hearing and mediation.
The adopted amendment to §575.22 provides further clarification regarding the actions the Board may take in reinstating a veterinarian's license and adds gender inclusive language. The Board is seeking to provide greater clarification of the actions the Board may take in reinstating a veterinary license as authorized under the Veterinary Licensing Act.
The adopted amendment to §575.27 provides further clarification regarding the Board's practice and procedure involving complaints against licensees and removes subsections involving complaint logs, investigation of complaints, informal conferences, contested case hearings, and contingency plans for Board members. The issue of investigation of complaints is addressed in new §575.28. The issue of informal conferences and contingency plans for Board members is addressed in new §575.29. The issue of Board procedures regarding contested case hearings is addressed in new §575.30. The Board is seeking to remove the complaint log, as the process no longer serves any useful purpose for the Board. The Board is also seeking to better organize the rules under the rule review process to provide the public with easier access to the information available under the Board's rules.
Adopted new §575.28 restates the Board's procedure involving investigations conducted by the Board as removed from §575.27, and simplifies the language to make the rule easier to read. The Board is seeking to better organize the rules under the rule review process to provide the public with easier access to the information available under the Board's rules.
Adopted new §575.29 restates the Board's procedure regarding informal conferences and contingency plans for Board members as removed from §575.27. In addition, the adopted new rule would allow the Enforcement Committee's designee to notify parties of the dismissal of a complaint, advise the licensee of the alleged violations and offer a settlement, or inform the licensee of their right to an administrative hearing. The adopted new rule provides further clarification of the Informal Settlement Conference procedure before the Enforcement Committee, including providing for additional negotiations and allowing for communications with Board members on the Enforcement Committee in the settlement process. The Board is seeking to better organize the rules under the rule review process to provide the public with easier access to the information available under the Board's rules. The Board is also seeking to create a contingency plan in case the Board Secretary is unable to serve in their official capacity. The Board is also seeking to provide the opportunity and process for additional negotiations between the Board staff and licensees in order to facilitate agreements that are satisfactory to both parties.
The Board repeals §575.30 regarding criminal convictions. The topic of criminal convictions is discussed in new §575.50. The Board adopts new §575.30 regarding contested case hearings at SOAH, restates the removed language from §575.27 regarding the contested case hearings before the Board. The new rule replaces the requirement of filing a complaint affidavit with SOAH, with filing a complaint, and further clarifies the Board's procedure with regards to filing complaints with SOAH. The new rule deletes specific requirements from the Board procedure for filing with SOAH as they are redundant to rules set forth by SOAH and the Administrative Procedure Act and are more properly placed in Board policy. The new rule also further delineates the presumption of receipt of a Notice of Hearing to the last known address registered with the Board for the licensee. The Board is seeking to better organize the rules under the rule review process to provide the public with easier access to the information available under the Board's rules and to provide better clarification to the public regarding the Board processes for filing contested cases with SOAH and streamline the Board's process for filing contested cases with SOAH.
The Board repeals §575.31 regarding alternative dispute resolution. The topic of alternative dispute resolution is discussed in adopted new §575.60.
The repeal is to allow better organization of Chapter 575. New §575.60 discusses the issue of alternative dispute resolutions.
The Board repeals §575.32 regarding negotiated rulemaking. The repeal allows for better organization of Chapter 575. Adopted new §575.62 discusses the issue of negotiated rulemaking.
Adopted new §575.35 outlines and clarifies the Board's process and procedure for those proceedings, as previously addressed in §573.67. The adopted new rule also clarifies evidence rules for these proceedings. The Board is seeking to better organize the rules under the rule review process to provide the public with easier access to the information available under the Board's rules and provide clarification of the Board's practice and procedure regarding temporary license suspension.
Adopted new §575.40 restates the language in repealed §573.77 regarding the Board's cease and desist procedures. The adopted new rule also states the purpose of the rule. The Board is seeking to better organize the rules under the rule review process to provide the public with easier access to the information available under the Board's rules and provide a statement of the Board's purpose for the cease and desist procedures.
Adopted new §575.50 restates the language in repealed §575.30 regarding criminal convictions. The Board is seeking to better organize the rules under the rule review process to provide the public with easier access to the information available under the Board's rules. Section 575.50 is adopted with changes to subsection (f). During the proposal, the last sentence in subsection (f) was inadvertently left off. The subsection reads as follows:
(f) Notwithstanding the provisions of (a) through (e) of this section, the Board shall suspend or revoke a veterinarian's license in accordance with the Occupations Code, §801.406, where the veterinarian has been convicted of a felony under the Health and Safety Code, §485.033, or the Health and Safety Code, Chapter 481 or 483.
Adopted new §575.60 restates the language in repealed §575.31 regarding alternative dispute resolutions. The adopted new rule also adds gender inclusive language. The Board is seeking to better organize the rules under the rule review process to provide the public with easier access to the information available under the Board's rules.
Adopted new §575.62 restates the language in repealed §575.32 regarding negotiated rulemaking. The adopted new rule adds the requirement that the notice of a proposed new rule or amendment of an existing rule shall be made in accordance with the Administrative Procedure Act, to conform the rule to the current practice of the Board, and to add gender inclusive language. The Board is seeking to better organize the rules under the rule review process to provide the public with easier access to the information available under the Board's rules.
The following comments were received:
Comments regarding §575.4 were received from a few individuals disagreeing with the necessity for the current wording in the current rule regarding the need for courtesy and respect towards Board members. The Board respectfully disagrees, as the Board believes that by courtesy and respect being shown by both public members and the Board, meetings will run more smoothly, and both sides will be more likely to hear the substance of the discussion rather than the distraction of personal accusations. The Board president, as the presiding officer of the Board meeting, makes the determination of whether anyone is not acting with courtesy and respect during the Board meeting, as he or she is tasked with the job of ensuring the Board meetings are kept civil so that the meetings run efficiently, timely and with the information needed for the Board to act.
One comment was received regarding §575. 5 by an individual stating the amendment was vague and ambiguous where the amendment stated that the subpoena should be made to the Board but addressed to a sheriff or constable. The Board respectfully disagrees. The rule states exactly what needs to occur for the subpoena to be processed by the Board. The Board has been given authority to process subpoenas requested by the opposing party. However, the sheriff or constable is the one who is actually serving the subpoena. Therefore, as at other state agencies who have this same ability, the requesting party should send the request for the subpoena to the Board but address the subpoena to the sheriff or constable they wish to have serve the subpoena.
No comments were received regarding the adoption of the proposed amendment to §575.6, except regarding grammar as generally discussed above.
Based on comments received regarding §575.7, the Board is deleting the requirement that a party shall not inquire into the mental processes used by the Board in arriving at its decision. This is a nonsubstantive change to the rule. One individual commented that it would be inappropriate for the Board to conduct an investigation after an Administrative Law Judge (ALJ) has rendered a proposal for decision. Nothing in this rule discusses the Board conducting an investigation after the ALJ has rendered a proposal for decision.
Regarding 575.8, one comment was received stating that it would be improper for the Board to limit the ALJ's authority to determine an appropriate sanction in a proposal for decision. The Board believes that there is no statutory authority that prevents the Board from being the final arbitrator in the appropriate sanction in a proposal for decision.
No comments were received regarding adoption of proposed new §575.9.
Regarding new §575.10, one comment was received stating that the costs of preparing the record for appeal should be assessed by the ALJ at SOAH not the Board. The Board notes that the APA authorizes the Board to assess the costs to the party who appeals.
Regarding §575.22, one comment was received regarding the perceived requirement that the Board reinstate a veterinarian's license after five years from the effective date of such cancellation or revocation regardless of the circumstances involved in the cancellation or revocation of the license. This language is not an amendment to the current language already in the rule. In addition, this is not a mandatory requirement that the Board will reinstate the license, rather that the Board, if the circumstances warrant it, may reinstate the license. One comment was received asking that the language involving the Board's ability to consider the status of financial support to petitioner's family be removed. This language is in the current rule promulgated by the Board thus it is not a new policy for the Board. This is merely a possible consideration for the Board, not a requirement, and allows the Board to consider possible extenuating circumstances and have a compassionate response in a situation if the facts warrant such a response. In addition, comments were received regarding grammar in the rule as discussed generally above.
Regarding §575.27, comments were received from individuals asking that the complaint log language not be removed. The original purpose of the complaint log was to identify the number of people that were requesting complaint forms as compared to the number of people that actually filed a complaint with the Board. The complaint log no longer serves any useful purpose because of the more widespread use of the Internet, that allows the public to go to the Board's website and print the complaint form without ever contacting the Board. Comments were received requesting that language be added to this rule for a report to the Board of dismissed complaints to be stated orally in open session. The Board respectfully disagrees, since the Board is already advised in writing of the number of dismissed complaints and this requirement would add considerable time to already lengthy Board meetings.
Regarding 575.28, one comment was received requesting the number of veterinarians at the Informal Settlement Conference be specifically limited to two. The Board respectfully disagrees, as the Enforcement Committee, in certain cases, asks for other veterinarians to sit in on an Informal Settlement Conference where they have a specialized insight due to their own veterinary practice. Comments were received asking for the language regarding the prompt notification of acknowledgement to be more specific. The Board respectfully disagrees, as this would unduly hamper the staff's ability to prioritize and handle tasks as the agency's resources permit. The Board is unaware of a recent concern by complainants regarding the time in which they received an acknowledgement of their complaint by the staff. Comments were received requesting the complaintant receive a copy of the licensee's response in an investigation. This policy was recently discussed at a Board meeting and the Board has elected to keep this policy as is. The Board set the current rule as the licensee is unable to respond to the complaint unless the licensee is aware of the complaintant charges. There is a concern that the provision of the licensee's response will result in an unending circle of accusations between the licensee and the complainant. If the veterinarian members of the Enforcement Committee determine there is a possible violation based upon the complaint, the response, the medical records, and any other evidence discovered, the licensee will be asked to attend an Informal Settlement Conference and the complainant will have an opportunity to refute any statement made by the licensee at that time. This is not a new policy being set forth in a rule but rather a reorganization of the current rule in place. Comments were received requesting the change in the language in paragraph (5) be changed back to a requirement that the Director of Enforcement interview the complainant to obtain additional information. The Board respectfully disagrees, as it is not always possible to reach the complainants. The Board has a policy of attempting to contact and interview complainants but this is not always possible. Comments were received requesting it become mandatory for secondary opinions to be contacted in every case. The Board respectfully disagrees, as the Enforcement Committee is tasked with reviewing the cases presented before them based upon their knowledge as licensed veterinarians. However, the veterinarians on the Enforcement Committee do, on occasion, when the circumstances warrant, ask for secondary opinions, often from respected board certified specialists in particular fields. The Board does not believe that every standard of care case should be reviewed by a secondary opinion. However, if the complainant or the veterinarian obtains a second opinion the Enforcement Committee may consider the opinion in evaluating the case. This is not a new policy being set forth in a rule but rather a reorganization of the current rule in place. One comment requested a public member review standard of care violations against licensees. The Board respectfully disagrees, as another licensed veterinarian is more qualified to review the medical aspects of a case to determine whether there has been a standard of care violation. One individual provided a comment that more Board members should attend the Informal Settlement Conference and especially more public members. The Board respectfully disagrees, as asking more than four Board members to the Informal Settlement Conference would create a quorum of the Board in violation of the Open Meetings Act and would circumvent the purpose of the Enforcement Committee.
Regarding §575.29, comments were received requesting additional language be added to the rule requiring complainant's legal counsel to be present at the Informal Settlement Conference. The Board respectfully disagrees, and leaves this decision at the discretion of the Executive Director who will be able to determine whether the settlement process with the licensee will be helped or harmed by the presence of the complainant's legal counsel at the Informal Settlement Conference. However, it should be noted, a very low percentage of complainants are represented by counsel and even fewer have ever been denied access to an Informal Settlement Conference. This is not a new policy being set forth in a rule but rather a reorganization of the current rule in place. One comment was received requesting the number of veterinarians at the Informal Settlement Conference be specifically limited to two. The Board respectfully disagrees, as the Enforcement Committee, in certain cases, asks for other veterinarians to sit in on an Informal Settlement Conference where they have a specialized insight due to their own veterinary practice. Comments were received asking for language which would not allow either party to meet privately with the Enforcement Committee, at the Enforcement Committee's request, as it was perceived by the individuals as creating secrecy around the process. The Board respectfully disagrees, as the rule currently states this same policy and provides the reasoning behind it, to "maintain decorum." In addition, the purpose of the meeting, as the name states, is a settlement conference, and just as in other mediations, it is often necessary for the parties to meet separately and outside of the presence of the other party in order for a settlement to be reached. Two comments were received requesting the removal of the language allowing the Executive Director to have discretion regarding the procedure followed at the Informal Settlement Conference. The Board respectfully disagrees, as it is necessary for there to be an individual that runs the process and procedure at the Informal Settlement Conference to allow for slight deviations from the procedure if necessary due to extenuating circumstances and the determination has been previously made that the most appropriate staff person is the Executive Director. This is not a new policy being set forth in a rule but rather a reorganization of the current rule in place. Two comments were received requesting the replacement of the word "allegations" with "complaint" in subsection (d). The Board respectfully disagrees, as the general counsel for the agency drafts allegations using the investigative report and a review of the facts in the case, and not all of the complaint may be determined by Enforcement Committee members to warrant a violation of the Board's rules. In addition, other violations may be found in a review of the facts surrounding a complaint that would not have been mentioned in the complaint but Enforcement Committee members may wish to be discussed at an Informal Settlement Conference. This is not a new policy being set forth in a rule but rather a reorganization of the current rule in place. Two comments were received asking for the removal of language requiring the agreement of the licensee in order for the Board to order restitution in a case at Informal Settlement Conference. The Board respectfully disagrees, as the Texas Veterinary Licensing Act requires the agreement of the licensee in the assessment of restitution. Only the Texas Legislature has the power to remove this requirement. This is not a new policy being set forth in a rule but rather a reorganization of the current rule in place.
Regarding §575.30, one comment was received requesting additional language in the rule to require the Board to send notice to any licensee's attorney. The Board respectfully disagrees, as the Board's current policy is to send notice to the licensee's attorney of record and this would not be necessary to be delineated in the Board's rules. One comment was received requesting language in the rule to be changed to require the Board to accept the proposal for decision without any further changes. The Board respectfully disagrees, as this would not be fulfilling the purpose of the Board as set forth in the APA to review the proposal for decision. The APA specifically addresses this issue and provides guidelines for the Board to follow when it is reviewing the proposal for decision and making changes, if any.
No comments were received regarding the repeal of §575.31.
One comment was received regarding the repeal of §575.32, requesting the Board to not repeal the rule, as negotiated rulemaking will no longer exist. The Board respectfully disagrees, as adopted new §575.62 discusses the issue of negotiated rulemaking.
No comments were received regarding the adoption of proposed new §575.35.
No comments were received regarding the adoption of proposed new §575.40.
No comments were received regarding the adoption of the proposed new §575.50.
Regarding §575.60, two comments were received requesting the complainant to be included in any alternative dispute resolution process. The Board respectfully disagrees, as the alternative dispute resolution process is used to mediate the disagreement between the Board and the licensee once the Enforcement Committee has determined a violation of the Act and/or the Board's rules has occurred. The complainant is no longer a party to any lawsuit at this point forward, therefore it is not appropriate for the complainant to attend an alternative dispute resolution conference.
Regarding §575.62, two comments were received regarding the designation of other staff members by the general counsel to be the negotiated rulemaking coordinator, and requesting the removal of the authority to designate other staff members. The Board respectfully disagrees, as this authority is necessary to effectively use the staff's time and resources of the agency.
22 TAC §§575.2 - 575.10, 575.22, 575.27 - 575.30, 575.35, 575.40, 575.50, 575.60, 575.62
The amendments and new rules are adopted 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 Board has determined the reasons for initially adopting the rules discussed above in the rule review of Chapter 575 continue to exist.
§575.7.Presentation of Proposal for Decision.
(a) Notice of oral argument. All parties and the ALJ who has issued a proposal for decision shall be given notice of the opportunity to attend and provide oral argument concerning a proposal for decision before the board. Notice shall be sent by hand delivery, regular mail, certified mail - return receipt requested, courier service, or registered service to the ALJ's office and the parties' addresses of record.
(b) Arguments before the Board. The order of the proceeding shall be as follows:
(1) the ALJ shall present and explain the proposal for decision;
(2) the party adversely affected shall briefly state the party's reasons for being so affected supported by the evidence of record;
(3) the other party or parties shall be given the opportunity to respond;
(4) the party with the burden of proof shall have the right to close;
(5) board members may question any party as to any matter relevant to the proposal for decision and evidence presented at the hearing;
(6) at the end of all arguments by the parties, the board may deliberate in closed session and shall determine the charges on the merits and take action on a final decision in open session.
(c) Limitation. A party shall not be disruptive of the orderly procedure of the board's routines.
§575.50.Criminal Convictions.
(a) In a process under Chapter 53, Occupations Code, the Board may suspend or revoke an existing license, disqualify a person from receiving a license, or deny a person the opportunity to be examined for a license because of a person's conviction of a felony or misdemeanor if the crime directly relates to the duties and responsibilities of a veterinarian. This subsection applies to persons who are not imprisoned at the time the Board considers the conviction.
(b) The Board shall revoke a license upon the imprisonment of a licensee following a felony conviction or revocation or felony community supervision, parole, or mandatory supervision. A person currently incarcerated because of a felony conviction may not sit for license examination, obtain a license under the Veterinary Licensing Act, Occupations Code, Chapter 801, or renew a previously issued license to practice veterinary medicine.
(c) The Board shall, in determining whether a criminal conviction directly relates to the duties and responsibilities of a veterinarian, consider the factors listed in the Occupations Code, §53.022.
(d) In determining the present fitness to perform the duties and discharge the responsibilities of a veterinarian who has been convicted of a crime, the Board shall consider, in addition to the factors referenced in subsection (c) of this section, the factors listed in the Occupations Code, §53.023.
(e) The practice of veterinary medicine places the veterinarian in a position of public trust. A veterinarian practices in an autonomous role in the treating and safekeeping of animals; prescribing, administering and safely storing controlled substances; preparing and safeguarding confidential records and information; and accepting client funds. The following crimes relate to the practice of veterinary medicine. The commission of each indicates a violation of the public trust, and a lack of integrity and respect for one's fellow human beings and the community at large.
(1) any felony or misdemeanor conviction of which fraud, dishonesty or deceit is an essential element;
(2) any criminal violation of the Veterinary Licensing Act, or other statutes regulating or pertaining to the practice or profession of veterinary medicine;
(3) any criminal violation of statutes regulating other professions in the healing arts;
(4) deceptive business practices;
(5) a misdemeanor or felony offense involving:
(A) murder;
(B) assault;
(C) burglary;
(D) robbery;
(E) theft;
(F) sexual assault;
(G) injury to a child or to an elderly person;
(H) child abuse or neglect;
(I) tampering with a government record;
(J) animal cruelty;
(K) forgery;
(L) perjury;
(M) bribery;
(N) mail fraud;
(O) diversion or abuse of controlled substances, dangerous drug, or narcotic; or
(P) other misdemeanors or felonies, including violations of the Penal Code, Titles 4, 5, 7, 9, and 10, which indicate an inability or tendency of the person to be unable to perform as a licensee or to be unfit for licensure, if action by the Board will promote the intent of the Veterinary Licensing Act, Board rules, including this chapter, and the Occupations Code, Chapter 53.
(f) Notwithstanding the provisions of (a) through (e) of this section, the Board shall suspend or revoke a veterinarian's license in accordance with the Occupations Code, §801.406, where the veterinarian has been convicted of a felony under the Health and Safety Code, §485.033, or the Health and Safety Code, Chapter 481 or 483.
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 June 23, 2008.
TRD-200803294
Loris Jones
Executive Assistant
Texas Board of Veterinary Medical Examiners
Effective date: July 13, 2008
Proposal publication date: March 28, 2008
For further information, please call: (512) 305-7563
22 TAC §§575.7, 575.30 - 575.32
The repeals are adopted 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 Board has determined the reasons for initially adopting the rules discussed above in the rule review of Chapter 575 continue to exist.
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 June 23, 2008.
TRD-200803293
Loris Jones
Executive Assistant
Texas Board of Veterinary Medical Examiners
Effective date: July 13, 2008
Proposal publication date: March 28, 2008
For further information, please call: (512) 305-7563