PART 8. TEXAS APPRAISER LICENSING AND CERTIFICATION BOARD

CHAPTER 153. RULES RELATING TO PROVISIONS OF THE TEXAS APPRAISER LICENSING AND CERTIFICATION ACT

22 TAC §153.24

The Texas Appraiser Licensing and Certification Board (TALCB) proposes amendments to 22 TAC §153.24, Complaint Processing.

The proposed amendments to §153.24 clarifies the preliminary investigative review process and corrects references within the rule to another section and another rule.

Kathleen Santos, General Counsel, has determined that for the first five-year period the proposed amendments are in effect, there will be no fiscal implications for the state or units of local government as a result of enforcing or administering the proposed amendments. There is no adverse economic impact anticipated for local or state employment, rural communities, small businesses, or micro businesses as a result of implementing the proposed amendments. There is no significant economic cost anticipated for persons who are required to comply with the proposed amendments. Accordingly, no Economic Impact statement or Regulatory Flexibility Analysis is required.

Ms. Santos has also determined that for each year of the first five years the proposed amendments are in effect the public benefits anticipated as a result of enforcing the proposed amendments will be requirements that are consistent with statutes and easier to understand, apply, and process.

Growth Impact Statement:

For each year of the first five years the proposed amendments are in effect the amendments will not:

-create or eliminate a government program;

-require the creation of new employee positions or the elimination of existing employee positions;

-require an increase or decrease in future legislative appropriations to the agency;

-require an increase or decrease in fees paid to the agency;

-create a new regulation;

-expand, limit or repeal an existing regulation; and

-increase the number of individuals subject to the rule's applicability.

For each year of the first five years the proposed amendments are in effect, there is no anticipated impact on the state's economy.

Comments on the proposed amendments may be submitted to Kathleen Santos, General Counsel, Texas Appraiser Licensing and Certification Board, P.O. Box 12188, Austin, Texas 78711-2188 or emailed to general.counsel@talcb.texas.gov. Comments may also be submitted electronically at https://www.talcb.texas.gov/agency-information/rules-and-laws/comment-on-proposed-rules. The deadline for comments is 30 days after publication in the Texas Register.

The amendments are proposed under Texas Occupations Code §1103.151, which authorizes TALCB to adopt rules for certifying or licensing an appraiser or appraiser trainee and §1103.154, which authorizes TALCB to adopt rules relating to professional conduct.

The statute affected by these amendments is Chapter 1103, Texas Occupations Code. No other statute, code or article is affected by the proposed amendments.

§153.24.Complaint Processing.

(a) Receipt of a Complaint Intake Form by the Board does not constitute the filing of a formal complaint by the Board against the individual named on the Complaint Intake Form. Upon receipt of a signed Complaint Intake Form, staff shall:

(1) assign the complaint a case number in the complaint tracking system; and

(2) send written acknowledgement of receipt to the Complainant.

(b) Priority of complaint investigations. The Board prioritizes and investigates complaints based on the risk of harm each complaint poses to the public. Complaints that pose a high risk of public harm include violations of the Act, Board rules, or USPAP that:

(1) evidence serious deficiencies, including:

(A) Fraud;

(B) Identity theft;

(C) Unlicensed activity;

(D) Ethical violations;

(E) Failure to properly supervise an appraiser trainee; or

(F) Other conduct determined by the Board that poses a significant risk of public harm; and

(2) were done:

(A) with knowledge;

(B) deliberately;

(C) willfully; or

(D) with gross negligence.

(c) The Board or the Executive Director may delegate to staff the duty to dismiss complaints. The complaint shall be dismissed with no further processing if the staff determines at any time that:

(1) the complaint is not within the Board's jurisdiction;

(2) no violation exists; or

(3) an allegation or formal complaint is inappropriate or without merit.

(d) A determination that an allegation or complaint is inappropriate or without merit includes a determination that the allegation or complaint:

(1) was made in bad faith;

(2) filed for the purpose of harassment;

(3) to gain a competitive or economic advantage; or

(4) lacks sufficient basis in fact or evidence.

(e) Staff shall conduct a preliminary inquiry to determine if dismissal is required under subsection (d) of this section.

(f) A complaint alleging mortgage fraud or in which mortgage fraud is suspected:

(1) may be investigated covertly; and

(2) shall be referred to the appropriate prosecutorial authorities.

(g) Staff may request additional information from any person, if necessary, to determine how to proceed with the complaint.

(h) If the TALCB Division requires additional information from a Respondent during the [As part of a] preliminary investigative review, a copy of the Complaint Intake Form and all supporting documentation shall be included in the request, [sent to the Respondent] unless the complaint qualifies for covert investigation and the TALCB Division deems covert investigation appropriate.

(i) The Board will:

(1) protect the complainant's identity to the extent possible by excluding the complainant's identifying information from a complaint notice sent to a respondent.

(2) periodically send written notice to the complainant and each respondent of the status of the complaint until final disposition. For purposes of this subsection, "periodically" means at least once every 90 days.

(j) The Respondent shall submit a response within 20 days of receiving a copy of the Complaint Intake Form. The 20-day period may be extended for good cause upon request in writing or by e-mail. The response shall include the following:

(1) a copy of the appraisal report that is the subject of the complaint;

(2) a copy of the Respondent's work file associated with the appraisal(s) listed in the complaint, with the following signed statement attached to the work file(s): I SWEAR AND AFFIRM THAT EXCEPT AS SPECIFICALLY SET FORTH HEREIN, THE COPY OF EACH AND EVERY APPRAISAL WORK FILE ACCOMPANYING THIS RESPONSE IS A TRUE AND CORRECT COPY OF THE ACTUAL WORK FILE, AND NOTHING HAS BEEN ADDED TO OR REMOVED FROM THIS WORK FILE OR ALTERED AFTER PLACEMENT IN THE WORK FILE.(SIGNATURE OF RESPONDENT);

(3) a narrative response to the complaint, addressing each and every item in the complaint;

(4) a list of any and all persons known to the Respondent to have actual knowledge of any of the matters made the subject of the complaint and, if in the Respondent's possession, contact information;

(5) any documentation that supports Respondent's position that was not in the work file, as long as it is conspicuously labeled as non-work file documentation and kept separate from the work file. The Respondent may also address other matters not raised in the complaint that the Respondent believes need explanation; and

(6) a signed, dated and completed copy of any questionnaire sent by Board staff.

(k) Staff will evaluate the complaint within three months after receipt of the response from Respondent to determine whether sufficient evidence of a potential violation of the Act, Board rules, or the USPAP exists to pursue investigation and possible formal disciplinary action. If the staff determines that there is no jurisdiction, no violation exists, there is insufficient evidence to prove a violation, or the complaint warrants dismissal, including contingent dismissal, under §153.241 of this title (relating to Sanctions Guidelines) [subsection (m) of this section], the complaint shall be dismissed with no further processing.

(l) A formal complaint will be opened and investigated by a staff investigator or peer investigative committee, as appropriate, if:

(1) the informal complaint is not dismissed under subsection (k) [(i)] of this section; or

(2) staff opens a formal complaint on its own motion.

(m) Written notice that a formal complaint has been opened will be sent to the Complainant and Respondent.

(n) The staff investigator assigned to investigate a formal complaint shall prepare a report detailing its findings on a form approved by the Board.

(o) The Board may order a person regulated by the Board to refund the amount paid by a consumer to the person for a service regulated by the Board.

(p) Agreed resolutions of complaint matters pursuant to Texas Occupations Code §1103.458 or §1103.459 must be signed by:

(1) the Board Chair or if the Board Chair is unavailable or must recuse him or herself, the Board Chair's designee, whom shall be (in priority order) the Board Vice Chair, the Board Secretary, or another Board member;

(2) Respondent;

(3) a representative of the TALCB Division; and

(4) the Executive Director or his or her designee.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 23, 2024.

TRD-202403901

Kathleen Santos

General Counsel

Texas Appraiser Licensing and Certification Board

Earliest possible date of adoption: October 6, 2024

For further information, please call: (512) 936-3088

SUBCHAPTER B. CONTESTED CASE HEARINGS

22 TAC §§157.9 - 157.11

The Texas Appraiser Licensing and Certification Board (TALCB) proposes amendments to 22 TAC §§157.9, Notice of Hearing; 157.10, Right to Counsel; Right to Participate; and 157.11, Contested Cases; Entry of Appearance; Continuance. The proposed amendments are made following TALCB's quadrennial rule review for this Chapter, to better reflect current TALCB procedures, and to simplify and clarify where needed.

The proposed amendments to §157.9 simplify the language and make the section more readable.

The proposed amendments to §157.10 provide more detail to the section title and clarify the applicability of SOAH rules related to translations.

The proposed amendments to §157.11 more consistently utilizes abbreviations used through the chapter.

Kathleen Santos, General Counsel, has determined that for the first five-year period the proposed amendments are in effect, there will be no fiscal implications for the state or units of local government as a result of enforcing or administering the proposed amendments. There is no adverse economic impact anticipated for local or state employment, rural communities, small businesses, or micro businesses as a result of implementing the proposed amendments. There is no significant economic cost anticipated for persons who are required to comply with the proposed amendments. Accordingly, no Economic Impact statement or Regulatory Flexibility Analysis is required.

Ms. Santos has also determined that for each year of the first five years the proposed amendments and rules are in effect the public benefits anticipated as a result of enforcing the proposed amendments will be requirements that are consistent with statutes and easier to understand, apply, and process.

Growth Impact Statement:

For each year of the first five years the proposed amendments and rules are in effect the amendments and rules will not:

-create or eliminate a government program;

-require the creation of new employee positions or the elimination of existing employee positions;

-require an increase or decrease in future legislative appropriations to the agency;

-require an increase or decrease in fees paid to the agency;

-create a new regulation;

-expand, limit or repeal an existing regulation; and

-increase the number of individuals subject to the rule's applicability.

For each year of the first five years the proposed amendments are in effect, there is no anticipated impact on the state's economy.

Comments on the proposed amendments may be submitted to Kathleen Santos, General Counsel, Texas Appraiser Licensing and Certification Board, P.O. Box 12188, Austin, Texas 78711-2188 or emailed to general.counsel@talcb.texas.gov. Comments may also be submitted electronically at https://www.talcb.texas.gov/agency-information/rules-and-laws/comment-on-proposed-rules.

The deadline for comments is 30 days after publication in the Texas Register.

The amendments are proposed under Texas Occupations Code 1103.151, Rules Relating to Certificates and Licenses, §1103.154, which authorizes TALCB to adopt rules related to professional conduct, and §1104.051, which authorizes TALCB to adopt rules necessary to administer the provisions of Chapter 1104.

The statutes affected by these amendments are Chapter 1103 and 1104, Texas Occupations Code. No other statute, code or article is affected by the proposed amendments.

§157.9.Notice of Hearing.

(a) The notice of hearing must comply with Chapter 2001, Texas Government Code and the rules of SOAH.

(b) The notice of hearing shall be served not later than the 30th day before the hearing date.

(c) The Board shall serve notice [Service of notice of hearing must be made in the manner prescribed by Chapter 2001, Texas Government Code, and the rules of the State Office of Administrative Hearings. Notice to a person who is a current license holder or applicant of the Board is complete and effective if sent] by certified mail, return receipt requested, to the respondent [respondent's] or applicant's mailing address and [sent] by:

(1) electronic mail to the address [as] shown in the Board's records; or

(2) first class mail.

(d) The notice must include the following language in capital letters in boldface type: FAILURE TO APPEAR AT THE HEARING WILL RESULT IN THE ALLEGATIONS AGAINST YOU SET OUT IN THE COMPLAINT BEING ADMITTED AS TRUE AND A DEFAULT JUDGMENT BEING TAKEN AGAINST YOU.

§157.10.Right to Counsel; Right to Participate; Transcript Cost; Interpreters and Translators.

(a) All parties, at their own expense, may be represented by counsel. This right may be expressly waived. Parties are entitled to respond and present evidence and argument on all issues involved, and to conduct cross examinations for full and true disclosure of the facts.

(b) Costs of a transcript of a SOAH proceeding ordered by a party shall be paid by that party. Costs of a transcript of a SOAH proceeding ordered by the judge shall be split equally between the parties.

(c) A party or witness who needs and interpreter or translator is responsible for making the request under SOAH rules.

§157.11.Contested Cases; Entry of Appearance; Continuance.

(a) When a contested case has been instituted, the respondent or the representative of the respondent shall enter an appearance not later than 20 days after the date of receipt of notice of hearing.

(b) For purposes of this section, a contested case shall mean any action that is referred by the Board to SOAH [the State Office of Administrative Hearings].

(c) For purposes of this section, an entry of appearance shall mean the filing of a written answer or other responsive pleading with SOAH [the State Office of Administrative Hearings].

(d) The filing of an untimely appearance by a party, or entering an appearance at the contested case hearing entitles the Board to a continuance of the hearing in the contested case at the Board's discretion for such a reasonable period of time as determined by the administrative law judge, but not for a period of less than 20 days. For purposes of this section, an untimely appearance is an appearance not entered within 20 days of the date the respondent has received notice.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 23, 2024.

TRD-202403900

Kathleen Santos

General Counsel

Texas Appraiser Licensing and Certification Board

Earliest possible date of adoption: October 6, 2024

For further information, please call: (512) 936-3088

22 TAC §157.17, §157.18

The Texas Appraiser Licensing and Certification Board (TALCB) proposes amendments to 22 TAC §157.17, Final Decisions and Orders, and §157.18, Motions for Rehearing. The proposed amendments are made following TALCB's quadrennial rule review for this Chapter, to better reflect current TALCB procedures, and to simplify and clarify where needed.

The proposed amendments to §157.17 simplify the language. The proposed amendments to §157.18 add a reference a specific section in 1103, for clarity and consistency.

Kathleen Santos, General Counsel, has determined that for the first five-year period the proposed amendments are in effect, there will be no fiscal implications for the state or units of local government as a result of enforcing or administering the proposed amendments. There is no adverse economic impact anticipated for local or state employment, rural communities, small businesses, or micro businesses as a result of implementing the proposed amendments. There is no significant economic cost anticipated for persons who are required to comply with the proposed amendments. Accordingly, no Economic Impact statement or Regulatory Flexibility Analysis is required.

Ms. Santos has also determined that for each year of the first five years the proposed amendments and rules are in effect the public benefits anticipated as a result of enforcing the proposed amendments will be requirements that are consistent with statutes and easier to understand, apply, and process.

Growth Impact Statement:

For each year of the first five years the proposed amendments and rules are in effect the amendments and rules will not:

-create or eliminate a government program;

-require the creation of new employee positions or the elimination of existing employee positions;

-require an increase or decrease in future legislative appropriations to the agency;

-require an increase or decrease in fees paid to the agency;

-create a new regulation;

-expand, limit or repeal an existing regulation; and

-increase the number of individuals subject to the rule's applicability.

For each year of the first five years the proposed amendments are in effect, there is no anticipated impact on the state's economy.

Comments on the proposed amendments may be submitted to Kathleen Santos, General Counsel, Texas Appraiser Licensing and Certification Board, P.O. Box 12188, Austin, Texas 78711-2188 or emailed to general.counsel@talcb.texas.gov. Comments may also be submitted electronically at https://www.talcb.texas.gov/agency-information/rules-and-laws/comment-on-proposed-rules. The deadline for comments is 30 days after publication in the Texas Register.

The amendments are proposed under Texas Occupations Code §1103.151, which authorizes TALCB to adopt rules for certifying or licensing an appraiser or appraiser trainee and §1103.154, which authorizes TALCB to adopt rules relating to professional conduct, and §1104.051, which authorizes TALCB to adopt rules necessary to administer the provisions of Chapter 1104.

The statute affected by these amendments are Chapter 1103 and 1104, Texas Occupations Code. No other statute, code or article is affected by the proposed amendments.

§157.17.Final Decisions and Orders.

(a) After a proposal for decision has been issued by an administrative law judge, the Board will render the final decision in the contested case or remand the proceeding for further consideration by the administrative law judge.

(b) The Board is responsible for imposing disciplinary action and/or assessing administrative penalties, if any, against a respondent who is found to have violated any of the Board's statutes or rules. The Board welcomes recommendations from an administrative law judge as to the sanctions to be imposed, but the Board is not required to give presumptively binding effect to the judge's recommendations and is not bound by such recommendations.

(c) If the Board remands the case to the administrative law judge, the Board may direct that further consideration be accomplished with or without reopening the hearing and may limit the issues to be considered. If, on remand, additional evidence is admitted that results in a substantial revision of the proposal for decision, or the underlying facts, the administrative law judge shall prepare an amended or supplemental proposal for decision and this subchapter applies [shall be prepared by the administrative law judge and the provisions of this subchapter shall apply]. Exceptions and replies shall be limited to items contained in the amended or supplemental proposal for decision.

(d) The proposal for decision may be acted upon by the Board after the expiration of the applicable time periods for filing exceptions and replies to exceptions, and after the administrative law judge has ruled on any exceptions and replies.

(e) Any party may request oral arguments before the Board prior to the final disposition of the contested case. If the Board grants oral argument, oral argument will be conducted in accordance with this subsection.

(1) The chairperson or the Board member designated by the chairperson to preside (the presiding member) shall announce the case. Upon the request of any party, the presiding member may conduct a prehearing conference with the parties and their attorneys of record. The presiding member may announce reasonable time limits for any oral arguments to be presented by the parties.

(2) Oral arguments on the proposal for decision shall be limited to the record established at the contested case hearing. New evidence may not be presented on the substance of the case unless the party submitting the evidence establishes [can establish] that the new evidence was not reasonably available at the time of the contested case hearing or the party offering the evidence was misled by a party regarding the necessity for offering the evidence at the contested case hearing.

(3) In presenting oral arguments, the party bearing the burden of proof shall open and close. The party responding may offer rebuttal arguments. Parties may request an opportunity for additional rebuttal subject to the discretion of the presiding member.

(4) After being recognized by the presiding member, the members of the Board may ask questions of the parties. If a party is represented by counsel, the questions must be directed to the party's attorney. Questions must be limited to the record and to the arguments made by the parties.

(5) Upon the conclusion of oral arguments, questions by the members of the Board, and any discussion by the member of the Board, the presiding member shall call for a motion regarding disposition of the contested case. The presiding member may vote on the motion. A motion may be granted only if a majority of the members present and voting vote in favor of the motion. In the event of a tie vote, the presiding member shall announce that the motion is overruled.

(f) Final orders on contested cases shall be in writing and signed by the presiding officer of the Board. Final orders shall include findings of fact and conclusions of law separately stated from disciplinary actions imposed and administrative penalties assessed. Parties shall be notified as provided in Chapter 2001, Texas Government Code. On written request, a copy of the decision or order shall be delivered or mailed to any party and to the respondent's attorney of record.

(g) The Board may change a finding of fact or conclusion of law in a proposal for decision when the Board determines that:

(1) the judge did not properly apply or interpret applicable law, agency rules, written policies provided by staff or prior administrative decisions;

(2) a prior administrative decision on which the judge relied is incorrect or should be changed; or

(3) a technical error in a finding of fact should be changed.

(h) If the Board modifies, amends, or changes a finding of fact or conclusion of law in a proposal for decision, the order shall reflect the Board's changes and state the specific reason and legal basis for the changes.

(i) If the Board does not follow the recommended disciplinary action and/or administrative penalty in a proposal for decision, the order shall explain why the Board chose not to follow the recommendation.

(j) Imminent Peril. If the Board finds that an imminent peril to the public health, safety, or welfare requires immediate effect on a final decision or order in a contested case, it shall recite the factual and legal basis for its finding in the decision or order as well as the fact that the decision or order is final and effective on the date rendered, in which event the decision or order is final and appealable on the date rendered, and no motion for rehearing is required as a prerequisite for appeal.

(k) Conflict of Interest. A Board member shall recuse himself or herself from all deliberations and votes regarding any matter:

(1) the Board member reviewed as a member of a Peer Investigative Committee;

(2) involving persons or transactions about which the Board member has a conflict of interest;

(3) involving persons or transactions related to the Board member such that it creates the appearance of a conflict of interest; or

(4) in which the Board member participated in the negotiation of a consent order.

§157.18.Motions for Rehearing.

(a) Motions for rehearing in proceedings under Chapter 1103, Texas Occupations Code, are governed by §1103.519, Texas Occupations Code, §§2001.144 - 2001.147, Texas Government Code, and this section.

(b) Motions for rehearing in proceedings under Chapter 1104, Texas Occupations Code, are governed by §1104.216, Texas Occupations Code, §§2001.144 - 2001.147, Texas Government Code, and this section.

(c) A timely-filed motion for rehearing is a prerequisite to appeal, except as provided in §157.17 of this subchapter. The motion must be filed with the Board by:

(1) delivering the motion in-person to the Board's headquarters;

(2) sending the motion via email to general.counsel@talcb.texas.gov; or

(3) sending the motion via fax to (512) 936-3788, ATTN: TALCB General Counsel.

(d) Replies to a motion for rehearing may be filed as provided in Chapter 2001, Texas Government Code.

(e) A motion for rehearing shall set forth the particular finding of fact, conclusion of law, ruling, or other action which the complaining party asserts caused substantial injustice to the party and was in error such as violation of a constitutional or statutory provision, lack of authority, unlawful procedure, lack of substantial evidence, abuse of discretion, other error of law, or other good cause specifically described in the motion. In the absence of specific grounds in the motion, the Board will take no action, and the motion will be overruled by operation of law.

(f) Any party may request oral arguments before the Board prior to the final disposition of the motion for rehearing. If the Board grants a request for oral argument, oral arguments will be conducted in accordance with this subsection.

(1) The chairperson or the Board member designated by the chairperson to preside (the presiding member) shall announce the case. Upon the request of any party, the presiding member may conduct a prehearing conference with the parties and their attorneys of record. The presiding member may announce reasonable time limits for any oral arguments to be presented by the parties.

(2) Oral arguments on the motion shall be limited to a consideration of the grounds set forth in the motion. Testimony by affidavit or documentary evidence such as excerpts of the record before the presiding officer may be offered in support of, or in opposition to, the motion; provided, however, a party offering affidavit testimony or documentary evidence must provide the other party with copies of the affidavits or documents at the time the motion is filed. New evidence may not be presented on the substance of the case unless the party submitting the evidence can establish that the new evidence was not reasonably available at the time of the contested case hearing or the party offering the evidence was misled by a party regarding the necessity for offering the evidence at the contested case hearing.

(3) In presenting oral arguments, the party filing the motion will have the burden of proof and shall open and close. The party responding to the motion may offer rebuttal arguments. Parties may request an opportunity for additional rebuttal subject to the discretion of the presiding member.

(4) After being recognized by the presiding member, the members of the Board may ask questions of the parties. If a party is represented by counsel, the questions must be directed to the party's attorney. Questions must be limited to the grounds asserted for the motion to be granted and to the arguments made by the parties.

(5) Upon the conclusion of oral arguments, questions by the members of the Board, and any discussion by the member of the Board, the presiding member shall call for a vote on the motion. A member of the Board need not make a separate motion or second a motion filed by a party. The presiding member may vote on the motion. A motion may be granted only if a majority of the members present and voting vote in favor of the motion. In the event of a tie vote, the presiding member shall announce that the motion is overruled.

(g) A decision is final and appealable on the date rendered if:

(1) the Board finds that an imminent peril to the public health, safety or welfare requires immediate effect; and

(2) the Board's decision or order recites this finding and the fact that the decision is final and effective on the date rendered.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 23, 2024.

TRD-202403902

Kathleen Santos

General Counsel

Texas Appraiser Licensing and Certification Board

Earliest possible date of adoption: October 6, 2024

For further information, please call: (512) 936-3088

22 TAC §157.25

The Texas Appraiser Licensing and Certification Board (TALCB) proposes amendments to 22 TAC §157.25, Temporary Suspension. The proposed amendments are made following TALCB's quadrennial rule review for this Chapter, to better reflect current TALCB procedures, and to simplify and clarify where needed.

The proposed amendments utilize an abbreviated term for consistency in the chapter.

Kathleen Santos, General Counsel, has determined that for the first five-year period the proposed amendments are in effect, there will be no fiscal implications for the state or units of local government as a result of enforcing or administering the proposed amendments. There is no adverse economic impact anticipated for local or state employment, rural communities, small businesses, or micro businesses as a result of implementing the proposed amendments. There is no significant economic cost anticipated for persons who are required to comply with the proposed amendments. Accordingly, no Economic Impact statement or Regulatory Flexibility Analysis is required.

Ms. Santos has also determined that for each year of the first five years the proposed amendments and rules are in effect the public benefits anticipated as a result of enforcing the proposed amendments will be requirements that are consistent with statutes and easier to understand, apply, and process.

Growth Impact Statement:

For each year of the first five years the proposed amendments and rules are in effect the amendments and rules will not:

-create or eliminate a government program;

-require the creation of new employee positions or the elimination of existing employee positions;

-require an increase or decrease in future legislative appropriations to the agency;

-require an increase or decrease in fees paid to the agency;

-create a new regulation;

-expand, limit or repeal an existing regulation; and

-increase the number of individuals subject to the rule's applicability.

For each year of the first five years the proposed amendments are in effect, there is no anticipated impact on the state's economy.

Comments on the proposed amendments may be submitted to Kathleen Santos, General Counsel, Texas Appraiser Licensing and Certification Board, P.O. Box 12188, Austin, Texas 78711-2188 or emailed to general.counsel@talcb.texas.gov. Comments may also be submitted electronically at https://www.talcb.texas.gov/agency-information/rules-and-laws/comment-on-proposed-rules. The deadline for comments is 30 days after publication in the Texas Register.

The amendments are proposed under Texas Occupations Code §§1103.151, which authorizes TALCB to adopt rules for certifying or licensing an appraiser or appraiser trainee; §1103.154, which authorizes TALCB to adopt rules relating to professional conduct; and 1104.051, which authorizes TALCB to adopt rules necessary to administer Chapter 1104, Texas Occupations Code.

The statutes affected by these amendments are Chapters 1103 and 1104, Texas Occupations Code. No other statute, code or article is affected by the proposed amendments.

§157.25.Temporary Suspension.

(a) The purpose of a temporary suspension proceeding is to determine whether the continued practice by a person licensed, certified or registered by the Board would constitute a continuing threat to the public welfare. A temporary suspension proceeding is ancillary to a disciplinary proceeding regarding alleged violations of the Act or Board rules and is not dispositive concerning any such violations.

(b) Board staff may request the Board to grant a temporary suspension if:

(1) the Board has opened a complaint investigation against a license holder; and

(2) the following criteria are met:

(A) credible evidence shows:

(i) a license holder may continue to engage in conduct that may violate the Act, Board rules, or USPAP;

(ii) the license holder's conduct involves recent or current appraisal practice; and

(B) sufficient evidence is available to proceed with a contested case hearing within 45 days of a temporary suspension proceeding.

(c) The three Board members of the Enforcement Committee appointed by the chair of the Board shall serve as the disciplinary panel ("Panel") under Texas Occupations Code, §1103.5511 and §1104.211. The chair of the Board shall also appoint a Board member to act as an alternate member of the Panel in the event a member of the Panel is recused or unable to attend a temporary suspension proceeding.

(d) Board staff must request a temporary suspension proceeding in writing by filing a motion for temporary suspension with the Board's general counsel.

(e) The Panel may make a determination regarding a temporary suspension without notice or hearing pursuant to Texas Occupations Code, §1103.5511(c)(1) or §1104.211(c)(1), or may, if appropriate in the judgment of the chair of the Panel, provide the license holder or registrant with three days' notice of a temporary suspension hearing.

(f) The requirement under Texas Occupations Code, §1103.5511(c)(1) or §1104.211(c)(1) that "institution of proceedings for a contested case hearing is initiated simultaneously with the temporary suspension" shall be satisfied if, on the same day the motion for temporary suspension is filed with the Board's general counsel, the licensed, certified or registered person that is the subject of the temporary suspension motion, and SOAH [the State Office of Administrative Hearings], as applicable, is sent one of the following documents that alleges facts that precipitated the need for a temporary suspension:

(1) Notice of Alleged Violation;

(2) Original Statement of Charges; or

(3) Amended Statement of Charges.

(g) The Panel shall post notice of the temporary suspension proceeding pursuant to §551.045 of the Texas Government Code and Texas Occupations Code, §1103.5511(e) or §1104.211(e) and hold the temporary suspension proceeding as soon as possible.

(h) The determination whether the continued practice by a person licensed, certified or registered by the Board would constitute a continuing threat to the public welfare shall be made from information presented to the Panel. The Panel may receive information and testimony in oral or written form. Documentary evidence must be submitted to the Board's general counsel in electronic format at least 24 hours in advance of the time posted for the temporary suspension hearing in all cases where the Panel will be meeting via teleconference. If a hearing is held following notice to a license holder or registrant, Board staff will have the burden of proof and shall open and close. The party responding to the motion for temporary suspension may offer rebuttal arguments. Parties may request an opportunity for additional rebuttal subject to the discretion of the chair of the Panel. The chair of the Panel may set reasonable time limits for any oral arguments and evidence to be presented by the parties. The Panel may question witnesses and attorneys at the members' discretion. Information and testimony that is clearly irrelevant, unreliable, or unduly inflammatory will not be considered.

(i) The determination of the Panel may be based not only on evidence admissible under the Texas Rules of Evidence, but may be based on information of a type on which a reasonably prudent person commonly relies in the conduct of the person's affairs.

(j) If the Panel suspends a license or certificate, it shall do so by order and the suspension shall remain in effect for the period of time stated in the order, not to exceed the date a final order is issued by the Board in the underlying contested case proceeding. The Panel order must recite the factual and legal basis for imminent peril warranting temporary suspension.

(k) A temporary suspension under Texas Occupations Code §1103.5511 or §1104.211 shall not automatically expire after 45 days if the Board has scheduled a hearing on the contested case to take place within that time and the hearing is continued beyond the 45th day for any reason other than at the request of the Board.

(l) If credible and verifiable information that was not presented to the Panel at a temporary suspension hearing, which contradicts information that influenced the decision of the Panel to order a temporary suspension, is subsequently presented to the Panel with a motion for rehearing on the suspension, the chair of the Panel will schedule a rehearing on the matter. The chair of the Panel will determine, in the chair's sole discretion, whether the new information meets the standard set out in this subsection. A rehearing on a temporary suspension will be limited to presentation and rebuttal of the new information. The chair of the Panel may set reasonable time limits for any oral arguments and evidence to be presented by the parties. Panel members may question witnesses and attorneys. Information and testimony that is clearly irrelevant, unreliable, or unduly inflammatory will not be considered. Any temporary suspension previously ordered will remain in effect, unless the Panel holds a rehearing on the matter and issues a new order rescinding the temporary suspension.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 23, 2024.

TRD-202403903

Kathleen Santos

General Counsel

Texas Appraiser Licensing and Certification Board

Earliest possible date of adoption: October 6, 2024

For further information, please call: (512) 936-3088

22 TAC §157.31

The Texas Appraiser Licensing and Certification Board (TALCB) proposes amendments to 22 TAC §157.31, Investigative Conference. The proposed amendments are made following TALCB's quadrennial rule review for this Chapter, to better reflect current TALCB procedures, and to simplify and clarify where needed.

The proposed amendments to §157.31 clarify the timing of when an acknowledgement form may be submitted to the Board.

Kathleen Santos, General Counsel, has determined that for the first five-year period the proposed amendments are in effect, there will be no fiscal implications for the state or units of local government as a result of enforcing or administering the proposed amendments. There is no adverse economic impact anticipated for local or state employment, rural communities, small businesses, or micro businesses as a result of implementing the proposed amendments. There is no significant economic cost anticipated for persons who are required to comply with the proposed amendments. Accordingly, no Economic Impact statement or Regulatory Flexibility Analysis is required.

Ms. Santos has also determined that for each year of the first five years the proposed amendments and rules are in effect the public benefits anticipated as a result of enforcing the proposed amendments will be requirements that are consistent with statutes and easier to understand, apply, and process.

Growth Impact Statement:

For each year of the first five years the proposed amendments and rules are in effect the amendments and rules will not:

-create or eliminate a government program;

-require the creation of new employee positions or the elimination of existing employee positions;

-require an increase or decrease in future legislative appropriations to the agency;

-require an increase or decrease in fees paid to the agency;

-create a new regulation;

-expand, limit or repeal an existing regulation; and

-increase the number of individuals subject to the rule's applicability.

For each year of the first five years the proposed amendments are in effect, there is no anticipated impact on the state's economy.

Comments on the proposed amendments may be submitted to Kathleen Santos, General Counsel, Texas Appraiser Licensing and Certification Board, P.O. Box 12188, Austin, Texas 78711-2188 or emailed to general.counsel@talcb.texas.gov. Comments may also be submitted electronically at https://www.talcb.texas.gov/agency-information/rules-and-laws/comment-on-proposed-rules. The deadline for comments is 30 days after publication in the Texas Register.

The amendments are proposed under Texas Occupations Code §1103.151, which authorizes TALCB to adopt rules for certifying or licensing an appraiser or appraiser trainee and §1103.154, which authorizes TALCB to adopt rules relating to professional conduct.

The statute affected by these amendments is Chapter 1103, Texas Occupations Code. No other statute, code or article is affected by the proposed amendments.

§157.31.Investigative Conference.

(a) The Board may request an applicant or respondent to schedule an investigative conference to discuss a pending license application or the allegations of a pending complaint.

(b) The applicant or respondent may choose to have the investigative conference:

(1) in person at the Board's office in Austin, Texas;

(2) by telephone;

(3) by video conference; or

(4) in writing.

(c) An applicant or respondent may, but is not required to, have an attorney or other advocate present at an investigative conference.

(d) An applicant or respondent will be provided with a Statement of Investigative Conference Procedures and Rights (IC Form) not later than three days before the date of the investigative conference. The applicant or respondent and the applicant's or respondent's attorney, if any, must acknowledge receipt of the IC Form by signing it and delivering it to the Board prior to [at the beginning of] the investigative conference.

(e) The Board will provide a copy of the investigative report to the applicant or respondent and the applicant's or respondent's representative(s), if any, not later than three days before the date of the investigative conference if the applicant or respondent and the applicant's or respondent's representative(s):

(1) Submit a written request for a copy of the investigative report not later than five days before the date of the investigative conference; and

(2) Sign the Board's confidentiality agreement prohibiting the re-release of the investigative report, without written permission of the Board or a court order, to anyone other than the:

(A) applicant;

(B) respondent;

(C) applicant's or respondent's supervisory appraiser, if any;

(D) applicant's or respondent's legal representative(s); or

(E) an expert witness for the applicant or respondent.

(f) Participation in an investigative conference is not mandatory and may be terminated at any time by any person.

(g) Recording Investigative Conferences. Any person may record an investigative conference by providing the notice required in this section.

(1) Notice Required.

(A) A person choosing to record an investigative conference must provide written notice to the other person(s) participating in the investigative conference three days before the date of the conference.

(B) The notice must state how the person intends to record the investigative conference.

(C) For purposes of this section, the term "written notice" includes a letter or e-mail.

(2) Audio Recordings. A person who chooses to make an audio recording of an investigative conference must provide:

(A) the recording equipment; and

(B) if requested by another person during or after the investigative conference, a copy of the audio recording at the recording person's expense within seven days after the date of the request.

(3) Recording by Court Reporter. A person who chooses to have a court reporter record an investigative conference does so at the person's own expense and must:

(A) allow any person who participates in the investigative conference to make corrections to the court reporter's transcript; and

(B) provide an electronic copy of the final transcript to all persons who participate in the investigative conference at the recording person's expense within seven days after the transcript is final.

(h) At the conclusion of the investigative conference, the Board staff may propose a settlement offer that can include administrative penalties and any other disciplinary action authorized by the Act or recommend that the complaint be dismissed.

(i) The respondent may accept, reject, or make a counter offer to the proposed settlement not later than ten (10) days following the date of the investigative conference.

(j) If the parties cannot reach a settlement not later than ten (10) days following the date of the investigative conference, the matter will be referred to the Director of TALCB or his or her designee to pursue appropriate action.

(k) In this section, the term "person" includes:

(1) an applicant for a license or registration;

(2) a respondent to a complaint; and

(3) the Board.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 23, 2024.

TRD-202403904

Kathleen Santos

General Counsel

Texas Appraiser Licensing and Certification Board

Earliest possible date of adoption: October 6, 2024

For further information, please call: (512) 936-3088

CHAPTER 343. CONTESTED CASE PROCEDURE

The Texas Board of Physical Therapy Examiners (board) proposes amending Chapter 343. Contested Case Procedures, Occupations Code. Specifically, the Board proposes amendments to §343.1. Definitions, §343.23. Hearings, §343.24. Payment of Costs for a Contested Case Hearing Resulting in the Discipline of a Licensee or the Denial of an Application for License, §343.26. Commutation of Time, §343.27. Probation, §343.28. Records Retention Schedule, §343.29. Failure To Appear at Informal Settlement Conference or Hearing, §343.35. Complaint Investigation and Disposition, §343.48. Dismissal of Complaint, §343.50. Application for Reinstatement of License, §343.51. Evaluation for Reinstatement, §343.52. Procedure upon Request for Reinstatement, §343.53. Board Action Possible upon Reinstatement of Revoked License, §343.55. Failure To Appear, and §343.56. Monitoring of Licensees. And proposes the repeal of §343.25. Continuance.

The amendments are proposed in order to provide clarity to the procedures for contested cases, to correct inaccurate and outdated references, and to conform the rules in Chapter 343 with the physical therapy provisions in Chapter 453, Occupations Code, with the administrative procedures in Chapter 2001, Government Code, and with Title 1 Texas Administrative Code. The repeal is proposed as the procedure is covered under the State Office of Administrative Hearings (SOAH) rules for hearings.

Section-by-Section Summary

Section 343.1. Definitions is amended to provide more accurate descriptions and references; to add definitions of Informal Settlement Conference (ISC), Investigation Committee, and Voluntary Surrender; and to reformat accordingly.

Section 343.23. Hearings is amended to correct references and eliminate redundancy of the sited sections of the Texas Government Code and the Texas Administrative Code.

Section 343.24. Payment of Costs for a Contested Case Hearing Resulting in the Discipline of a Licensee or the Denial of an Application for License is amended to correct the title to reflect that penalties not costs are assessed and that administrative penalties may be assessed if a licensee is found in violation of the Act and are payable in accordance with the final order.

Section 343.25. Continuance is repealed as the procedure is covered under SOAH administrative rules for hearings.

Section 343.26. Commutation of Time is amended to correct the title as the section deals with computation of time.

Section 343.27. Probation is amended to correct grammatical errors.

Section 343.28. Records Retention Schedule is amended to align terminology with the current agency records retention schedule.

Section 343.29. Failure To Appear at Hearing is amended to add the procedure for failure to appear at an Informal Settlement Conference and clarify that failure to appear at a State Office of Administrative Hearings (SOAH) shall result in a default judgment against the respondent.

Section 343.35. Complaint Investigation and Disposition is amended to align terminology (a) with Definitions in §343.1. (1) and correct terminology in (b)(2).

Section 343.48. Dismissal of Complaint is amended to replace "respondent has left the state" with "unable to locate" as a reason for complaint dismissal and to correct grammatical errors.

Section 343.50. Application for Reinstatement of License is amended to replace "application" with "request" and to designate the Investigations Committee for consideration of a request for reinstatement.

Section 343.51. Evaluation for Reinstatement is amended to include licenses that have been voluntarily surrendered and to eliminate the requirement for a sworn notarized statement as attestation degree of rehabilitation attained.

Section 343.52. Procedure upon Request for Reinstatement to designate the Investigations Committee for appearance by requestor for reinstatement.

Section 343.53. Board Action Possible upon Reinstatement of Revoked License is amended to include licenses that have been voluntarily surrendered and to include completion of a pending Agreed Order as a requirement for reinstatement.

Section 343.55. Failure To Appear is amended to include licenses that have been voluntarily surrendered.

Section 343.56. Monitoring of Licensees is amended to designate the agency for monitoring of licensees to ensure compliance to board orders.

Fiscal Note

Ralph A. Harper, Executive Director of the Executive Council of Physical Therapy & Occupational Therapy Examiners, has determined that for the first five-year period the amendments and repeal are in effect there would be no loss of revenue, and there would be no fiscal implication to units of local government as a result of enforcing or administering the rules.

Public Benefits and Costs

Mr. Harper has determined that for the first five-year period these amendments and repeal are in effect, the public benefit will be providing increased clarity of the procedures for a contested case. Additionally, there will be no cost to the public.

Local Employment Economic Impact Statement

The amendments and repeal are not anticipated to impact a local economy, so a local employment economic impact statement is not required.

Small and Micro-Businesses and Rural Communities Impact

Mr. Harper has determined that there will be no costs or adverse economic effects to small or micro-businesses or rural communities as a result of the amendments and repeal; therefore, an economic impact statement or regulatory flexibility analysis is not required.

Government Growth Impact Statement

During the first five-year period these amendments and repeal are in effect, the impact on government growth is as follows:

(1) The proposed rule amendments and repeal will neither create nor eliminate a government program.

(2) The proposed rule amendments and repeal will neither create new employee positions nor eliminate existing employee positions.

(3) The proposed rule amendments and repeal will neither increase nor decrease future legislative appropriations to the agency.

(4) The proposed rule amendments and repeal will neither require an increase nor a decrease in fees paid to the agency.

(5) The proposed rule amendments and repeal revise the language to existing regulation but does not create a new regulation.

(6) The proposed rule amendments and repeal will neither repeal nor limit an existing regulation.

(7) The proposed rule amendments and repeal will neither increase nor decrease the number of individuals subject to the rule's applicability.

(8) The proposed rule amendment and repeal will neither positively nor adversely affect this state's economy.

Takings Impact Assessment The proposed rule amendments and repeal will not impact private real property as defined by Tex. Gov't Code §2007.003, so a takings impact assessment under Tex. Gov't Code §2001.043 is not required.

Requirement for Rule Increasing Costs to Regulated Persons

Tex. Gov't Code §2001.0045, Requirement for Rule Increasing Costs to Regulated Persons, does not apply to this proposed rule because the amendments and repeal will not increase costs to regulated persons.

Public Comment

Comments on the proposed amendments and repeal may be submitted to Karen Gordon, PT Coordinator, Texas Board of Physical Therapy Examiners, 1801 Congress Ave, Suite 10.900, Austin, Texas 78701; email: karen@ptot.texas.gov. Comments must be received no later than 30 days from the date this proposed amendment is published in the Texas Register.

22 TAC §§343.1, 343.23, 343.24, 343.26 - 343.29, 343.35, 343.48, 343.50 - 343.53, 343.55, 343.56

Statutory Authority

The amendments are proposed under Texas Occupation Code §453.102, which authorizes the board to adopt rules necessary to implement chapter 453.

Cross-reference to Statute

The proposed amendments implement provisions in Chapter 453, Subchapter H, Occupations Code that pertains to disciplinary action and procedure. No other statutes, articles, or codes are affected by the proposed amendments.

§343.1.Definitions.

The following words and terms, when used in this chapter, shall have the following meanings, unless the context clearly indicates otherwise.

(1) Act--The Texas Physical Therapy Practice Act, Occupations Code, Chapter 453 [Texas Civil Statutes, Article 4512e].

(2) Agency--The Executive Council of Physical Therapy & Occupational Therapy Examiners [Board of Physical Therapy Examiners].

[(3) APTRA--The Administrative Procedure and Texas Register Act, Texas Civil Statutes, Article 625213a].

(3) [(4)] Applicant--A qualified individual who presents application for licensure as a physical therapist or physical therapist assistant or for reinstatement of a previously suspended or revoked license.

(4) [(5)] Board--The Texas Board of Physical Therapy Examiners whose members [of the Board of Physical Therapy Examiners who] are appointed pursuant to Occupations Code, Chapter 453.051 [Texas Civil Statutes, Article 4512e].

(5) [(6)] Board order--A final decision of the board issued in a contested or uncontested proceeding [or in lieu of such proceeding], which may include findings of fact and conclusions of law, separately stated.

(6) [(7)] Complaint--A written statement of allegations filed with the board which includes a statement of the matters asserted, including any supporting documentation available, the filing of which may initiate a contested case proceeding.

(7) [(8)] Contested case--A proceeding in which the legal rights, duties, or privileges of a party are to be determined by the board [agency] after an opportunity for adjudicative hearing.

(8) [(9)] Disciplinary action--Imposition of a sanction by the board which may include reprimand, suspension, probation, or revocation of a license, or other appropriate requirements.

(9) [(10)] Executive director--The chief officer [executive director] of the Executive Council of Physical Therapy & Occupational Therapy Examiners [Board of Physical Therapy Examiners].

(10) Informal Settlement Conference (ISC)--A conference designed to resolve contested cases by informally disposing of matters by agreement and voluntary settlement without the need for a formal hearing at the State Office of Administrative Hearings (SOAH).

(11) Investigation Committee--A standing committee of the board that reviews complaint investigations with recommendation of appropriate action made to the board.

(12) [(11)] Licensee--A person who holds a license either permanent or temporary under the [Physical Therapy Practice] Act.

[(12) Moral turpitude--Baseness, vileness, or dishonesty of a high degree.]

(13) (No change.)

(14) Party--A [Each] person or a state agency named or admitted as a party in [with a sufficient legal, economic, or other interest to be named or admitted as such by the agency to] a contested case proceeding [before the agency].

(15) Probation--A period of time when a license is subject to conditions or limitations. [Each person whose license is suspended is placed on probation for the length of the suspension.]

(16) Reinstatement--To reactivate a license that was previously revoked or voluntarily surrendered. [The individual with a revoked license must demonstrate or supply evidence to the board of his or her rehabilitation or current fitness to hold a license. Reinstatement petitions shall be considered no sooner than 180 days after the revocation order becomes final and enforceable.]

(17) (No change.)

(18) Respondent--A person who has been made the subject of a formal or informal complaint alleging violation of the [Texas Physical Therapy Practice] Act, [or] rules, other laws or regulations, or orders of the board [Board of Physical Therapy Examiners].

(19) Revocation--The withdrawal or repeal of a license. [Revocation is established for minimum period of one year.]

(20) Staff--The investigative staff of the board [Board of Physical Therapy Examiners].

(21) (No change.)

(22) Voluntary surrender--The act of relinquishing a license at the will of the licensee in lieu of disciplinary action.

§343.23.Hearings.

[(a)] The State Office of Administrative Hearings (SOAH) shall conduct all administrative hearings of [in] contested cases [under the Administrative Procedure Act (APA)] that are before the board in accordance with Texas Government Code 2001 and Title 1 Texas Administrative Code.

[(b) Transcription of hearing. Each hearing will be recorded by a court reporter.]

[(1) The cost of the transcription shall be borne by the person making the request.]

[(2) A party who appeals a final decision of the board shall pay all of the cost of preparation of the original and any certified copy of the record of the agency proceeding that is required to be transmitted to the reviewing court.]

§343.24.Payment of Penalties after [Costs for] a Contested Case Hearing Resulting in the Discipline of a Licensee or the Denial of an Application for License.

(a) (No change.)

(b) A person whose application for a license has been denied by the staff or a licensee who has been found in violation of the Act or rules as a result of a contested case hearing may [will] be required to pay administrative penalties [submit a fee for costs] to the board. Payment of penalties are due to the Board in accordance with the final order. [The costs will be those fees billed by SOAH to the board for conducting the hearing and rendering the proposal for final decision.]

§343.26.Computation [Commutation] of Time.

(a) (No change.)

(b) Extension. Unless otherwise provided by statute, the time for filing any pleading, motion, or request may be extended by order of the executive director or designee, upon written motion filed prior to the expiration of the applicable period of time for the filing of the same, showing that the need for extension is not caused by the neglect, indifference, or lack of diligence of the requesting party.

§343.27.Probation.

If [In] placing a person on probation whose license has been suspended, the board may impose such additional terms and conditions as it deems appropriate for the period of probation. The board shall specify the exact duration of the probationary period. Upon finding that a person placed on probation has failed to comply with the terms and condition of the board's order, the board may take [such] additional disciplinary action as it deems appropriate, following notice and hearing.

§343.28.Records Retention Schedule.

All investigations files [records] shall be maintained in accordance with the approved records retention schedule on file with the Texas State Library and Archives Commission.

§343.29.Failure To Appear at Informal Settlement Conference or Hearing.

(a) Informal Settlement Conference. Failure to respond to the allegations, either by personal appearance at the informal settlement conference or in writing, may result in the allegations being confirmed at the informal settlement conference and the highest proposed sanction being recommended to the board. The notice of the informal settlement conference shall be served by delivering a copy to the respondent or licensee in accordance with Texas Government Code §2001.054(c)(1), to the licensee's last known address of record as shown by agency records, not less than 10 days prior to the date of the conference. [Even though some or all of the parties or their duly authorized representatives should fail to appear, the board may consider fully the matter pending if notice has been given in accordance with this chapter. Such consideration shall be on the basis of any evidence admitted at the hearings and all pleadings, exhibits, briefs, and other materials presented in connection therewith.]

(b) State Office of Administrative Hearings (SOAH) - If a respondent fails to appear in person or by attorney on the day and at the time set for hearing in a contested case, regardless of whether an appearance has been entered, the judge shall, upon adequate proof that proper notice under the Texas Government Code chapter 2001 and Title 1 Texas Administrative Code Part 7 was served upon the defaulting party, enter a default judgment in the matter adverse to the respondent. [Absence of counsel shall not be good cause for a continuance or postponement of a cause when called for hearing, except that it be allowed in the discretion of the hearings examiner or board, upon cause shown or upon matters within the knowledge or information of the hearings examiner or board to be stated on the record.]

§343.35.Complaint Investigation and Disposition.

(a) Complaints shall be assigned a priority status in the following categories:

(1) those indicating that credible evidence exists showing a violation of the [Physical Therapy Practice] Act involving actual deception, fraud or injury to clients or the public or a high probability of immediate deception, fraud, or injury to clients or the public;

(2) those indicating that credible evidence exists showing a violation of the [Physical Therapy Practice] Act involving a high probability of potential deception, fraud, or injury to clients or the public;

(3) those indicating that credible evidence exists showing a violation of the [Physical Therapy Practice] Act involving a potential for deception, fraud, or injury to clients or the public;

(4) all other complaints.

(b) Not later than the 30th day after a complaint is received, the staff shall place a timeline for completion, not to exceed one year, in the investigative file and notify all parties to the complaint. Any change in the timeline must be noted in the file and all parties notified of the change not later than seven days after the change was made. For purposes of this rule, completion of an investigation in a disciplinary matter occurs when:

(1) (No change.)

(2) staff determines there is sufficient evidence to demonstrate a violation of the act, board rules, or board order and drafts proposed board order [formal charges].

(c) - (e) (No change.)

§343.48.Dismissal of Complaint.

(a) Complaints may be dismissed for the following reasons:

(1) (No change.)

(2) unable to locate [respondent has left the state];

(3) (No change.)

(4) other reasons which the Investigation Committee believe justify dismissal [are justification for dismission].

(b) Upon the decision of the Investigation Committee to dismiss a complaint, the person who filed the complaint is provided with a letter explaining why the complaint has been dismissed.

(c) (No change.)

§343.50.Request [Application] for Reinstatement of License.

(a) At the expiration of 180 days from the date of revocation, the Investigation Committee [board] may consider a request for reinstatement by the former licensee [(applicant)].

(b) The request for reinstatement must be submitted to the agency [board office] in writing and should include a short and plain statement of the reasons why the requestor [applicant] believes the license should be reinstated.

(c) Upon denial of any request [application ] for reinstatement, the board may not consider a subsequent request [application] until the expiration of one year from the date of denial of the prior request [application].

(d) (No change.)

§343.51.Evaluation for Reinstatement.

In considering reinstatement of a revoked or voluntarily surrendered [suspended] license, the board will evaluate:

(1) the severity of the act which resulted in revocation or voluntary surrender of the license;

(2) the conduct of the applicant subsequent to the revocation or voluntary surrender of license;

(3) the lapse of time since revocation or voluntary surrender;

(4) (No change.)

(5) the degree of rehabilitation attained by the applicant as evidenced by [sworn notarized] statements sent directly to the board from qualified people who have personal and professional knowledge of the applicant; and

(6) (No change.)

§343.52.Procedure upon Request for Reinstatement.

(a) An applicant for reinstatement of a revoked license must personally appear before the Investigation Committee [board] at a scheduled date and time to show why the license should be reinstated.

(b) The [Upon submission of proof of past revocation of the applicant's license, the] applicant has the burden of proof to show present fitness and/or rehabilitation to practice physical therapy.

(c) Where the applicant's license has been revoked or voluntarily surrendered based on a finding, admission, or allegation that the applicant was unfit to practice physical therapy by reasons of intemperate use of alcohol or drugs, misappropriation of controlled substances, an adjudication of mental incompetence, or the existence of any mental disorder, the applicant must submit a written psychiatric or psychological evaluation or [and] written medical evaluation. Said evaluations shall be obtained solely at the applicant's expense and forwarded directly to the agency by the examiner. The psychiatric or psychological evaluation must be prepared by a licensed psychiatrist or psychologist and the medical evaluation must be prepared by a licensed physician. Said reports shall include such information as the agency may specifically require with notice to the applicant.

(d) Upon receipt of a written request for reinstatement and all information required by subsection (c) of this section, the applicant will be notified of the [a] date and time of an appearance before the Investigation Committee [board].

§343.53.Board Action [Possible] upon Reinstatement of Revoked or Voluntarily Surrendered License.

After evaluation, the board may:

(1) - (2) (No change.)

(3) require the satisfactory completion of a pending Agreed Order, or a specific program or remedial education approved by the board [agency]; and

(4) (No change.)

§343.55.Failure To Appear.

An applicant for reinstatement of a revoked or voluntarily surrendered license who makes a commitment to appear before the board, and fails to appear at a hearing set with notice by the agency, shall not be authorized to appear before the board before the expiration of six months. For good cause shown, the executive director may authorize an exception to this rule.

§343.56.Monitoring of Licensees.

A licensee who is ordered by the board to perform certain acts will be monitored by the agency [board] to ensure that the required acts are completed per the order of the board.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 20, 2024.

TRD-202403834

Ralph Harper

Executive Director

Texas Board of Physical Therapy Examiners

Earliest possible date of adoption: October 6, 2024

For further information, please call: (512) 305-6900

Statutory Authority

The repeal is proposed under Texas Occupation Code §453.102, which authorizes the board to adopt rules necessary to implement chapter 453.

Cross-reference to Statute

The proposed repeal is in accordance to provisions in Chapter 453, Subchapter H, Occupations Code that pertains to disciplinary action and procedure. No other statutes, articles, or codes are affected by the proposed repeal.

§343.25.Continuance.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 26, 2024.

TRD-202403935

Ralph Harper

Executive Director

Texas Board of Physical Therapy Examiners

Earliest possible date of adoption: October 6, 2024

For further information, please call: (512) 305-6900

CHAPTER 537. PROFESSIONAL AGREEMENTS AND STANDARD CONTRACTS

22 TAC §§537.20, 537.22, 537.28, 537.30 - 537.32, 537.37, 537.39, 537.46, 537.47, 537.67

The Texas Real Estate Commission (TREC) proposes amendments to 22 TAC §537.20, Standard Contract Form TREC No. 9-16, Unimproved Property Contract; §537.22, Standard Contract Form TREC No. 11-7, Addendum for "Back-Up" Contract; §537.28, Standard Contract Form TREC No. 20-17, One to Four Family Residential Contract (Resale); §537.30, Standard Contract Form TREC No. 23-18, New Home Contract (Incomplete Construction); §537.31, Standard Contract Form TREC No. 24-18, New Home Contract (Completed Construction); §537.32, Standard Contract Form TREC No. 25-15, Farm and Ranch Contract; §537.37, Standard Contract Form TREC No. 30-16, Residential Condominium Contract (Resale); §537.39, Standard Contract Form TREC No. 32-4, Condominium Resale Certificate; §537.46, Standard Contract Form TREC No. 39-9, Amendment to Contract; §537.47, Standard Contract Form TREC No. 40-10, Third Party Financing Addendum; and new rule §537.67, Standard Contract Form TREC No. 60-0, Addendum for Section 1031 Exchange in Chapter 537, Professional Agreements and Standard Contracts.

Each of the rules correspond to contract forms adopted by reference. Texas real estate license holders are generally required to use forms promulgated by TREC when negotiating contracts for the sale of real property. These forms are drafted and recommended for proposal by the Texas Real Estate Broker-Lawyer Committee, an advisory body consisting of six attorneys appointed by the President of the State Bar of Texas, six brokers appointed by TREC, and one public member appointed by the governor. The Texas Real Estate Broker-Lawyer Committee recommended revisions to the contract forms adopted by reference under the proposed amendments and new rule. The changes listed below apply to all contract forms unless specified otherwise. Paragraph numbers referenced are from the One to Four Family Residential Contract (Resale).

Paragraph 4 is amended to add the term "geothermal" to the definition of Natural Resource Leases as a result of a 2023 law change that stipulates property owners own the geothermal energy below the surface of their land and can drill or produce that energy and associated resources.

To be consistent with a recently updated Texas Department of Insurance procedural rule, Paragraph 6C(1) is amended to include the option of providing the T-47.1 Declaration (which does not need to be notarized)-in lieu of the T-47 Affidavit-when the Seller furnishes the Buyer an existing survey. In lieu of providing a "no survey required" option, Paragraph 6C(2) is amended to read "Buyer may obtain a new survey" instead of "Buyer shall obtain a new survey", and adds that if the Buyer ultimately fails to obtain the survey, the Buyer does not have the right to terminate the contract under Paragraph 2B of the Third Party Financing Addendum because the survey was not obtained.

Because Texas law requires a seller to provide a buyer a copy of any mold remediation certificate issued during the five years preceding the sale of the property, new Paragraph 6E(11) is added to provide information regarding this requirement (except in the Unimproved Property Contract).

Paragraph 6E(12) is modified to add specific examples of the types of notices that should be listed in the paragraph and to add a caution that Seller's failure to provide required notices may provide Buyer with certain remedies, like the ability to terminate the contract. For consistency with that paragraph and with applicable statutory requirements, Paragraphs 6E(4), (7), and (9) are amended to remove references to a separate related addendum

Paragraph 8B is changed to add a statement that brokers' fees are not set by law and are negotiable.

In light of recent discussions surrounding broker compensation, Paragraph 12A(1)(a) and 12A(2) adds that each party pays the brokerage fees that they each have agreed to pay. Paragraph 12A(1)(b) is amended to allow for a specific seller contribution to the buyer's brokerage fees. A new Paragraph 12A(1)(c) has been added to separately address other seller contributions (that was previously in Paragraph 12A(1)(b)) and the prior language that specified the order in which any contribution was to be paid, as well as a limitation on the type of fee that could be paid, is removed. Conforming changes are also made in the Amendment to Contract.

The title of Paragraph 20 is changed to "Federal Requirements" from "Federal Tax Requirements." In new Paragraph 20B of the Farm and Ranch contract, information regarding the obligations related to the federal Agriculture Foreign Investment Disclosure Act has been added.

The compensation disclosure in the Broker Information section of the contracts (except for the Farm and Ranch Contract) has been modified to remove the parenthetical referencing the MLS and to add checkboxes to allow for the fee to be reflected either as a percentage or a dollar amount.

In the Third Party Financing Addendum, to ensure the buyer is terminating appropriately, Paragraph 2A, Buyer Approval, has been changed to require both a notice of termination and a copy of a written statement of the lender's determination like in Paragraph 2B, Property Approval. The language in Paragraph 2B is modified because the language related to notice of termination timing was different than in other contract provisions and was causing confusing. "Requirements" in Paragraph 4 is made singular and a conforming change is made to a paragraph citation.

The Condominium Resale Certificate is amended to conform the language in Paragraphs K and L with section 82.157, Texas Property Code.

In the Unimproved Property contract, Paragraph 3D is amended to include the same sales price adjustment language as in the Farm and Ranch contract. A dollar sign is also added to Paragraph 3D in the Farm and Ranch contract.

Out of concern about confusion and improper use of Paragraph 11, Special Provisions, by license holders, the Addendum for "Back-Up" Contract is modified to provide more clarity on the timing and payment of the earnest money and option fee by incorporating similar language from Paragraph 5 of the contract and by addressing timing and payment of additional fees.

The committee drafted a new Addendum for Section 1031 Exchange that allows the seller or buyer to disclose an intent to use the subject property as a 1031 exchange and includes a statement that the parties will reasonably cooperate with one another. Providing this as an addendum, rather than in the contract, allows the parties to use it when applicable without causing unnecessary confusion. A reference to the new Addendum for Section 1031 Exchange is also added to Paragraph 22 of the contract.

Abby Lee, Deputy General Counsel, has determined that for the first five-year period the proposed amendments are in effect there will be no fiscal implications for the state or for units of local government as a result of enforcing or administering the sections. There is no adverse economic effect anticipated for small businesses, micro-businesses, rural communities, or local or state employment as a result of implementing the proposed amendments. There is no significant economic cost anticipated for persons who are required to comply with the proposed amendments. Accordingly, no Economic Impact Statement or Regulatory Flexibility Analysis is required.

Ms. Lee also has determined that for each year of the first five years the sections as proposed are in effect, the public benefits anticipated as a result of adopting the sections as proposed will be improved clarity and greater transparency for members of the public and license holders who use these contract forms.

For each year of the first five years the proposed amendments and new rules are in effect, the amendments will not:

-create or eliminate a government program;

-require the creation of new employee positions or the elimination of existing employee positions;

-require an increase or decrease in future legislative appropriations to the agency;

-require an increase or decrease in fees paid to the agency;

-create a new regulation;

-expand, limit or repeal an existing regulation;

-increase or decrease the number of individuals subject to the rule's applicability; or

-positively or adversely affect the state's economy.

Comments on the proposal may be submitted through the online comment submission form at https://www.trec.texas.gov/rules-and-laws/comment-on-proposed-rules, to Abby Lee, Deputy General Counsel, Texas Real Estate Commission, P.O. Box 12188, Austin, Texas 78711-2188, or via email to general.counsel@trec.texas.gov. The deadline for comments is 30 days after publication in the Texas Register.

The amendments and new rule are proposed under Texas Occupations Code, §1101.151, which authorizes the Texas Real Estate Commission to adopt and enforce rules necessary to administer Chapters 1101 and 1102; and to establish standards of conduct and ethics for its license holders to fulfill the purposes of Chapters 1101 and 1102 and ensure compliance with Chapters 1101 and 1102. The amendments and rules are also adopted under Texas Occupations Code, §1101.155, which authorizes the Commission to adopt rules in the public's best interest that require license holders to use contract forms prepared by the Texas Real Estate Broker-Lawyer Committee and adopted by the Commission.

The statute affected by these amendments and new rules is Texas Occupations Code, Chapter 1101. No other statute, code or article is affected by the amendments and new rules.

§537.20.Standard Contract Form TREC No. 9-17 [9-16], Unimproved Property Contract.

The Texas Real Estate Commission (Commission) adopts by reference standard contract form TREC No. 9-17 [9-16] approved by the Commission in 2024 [2022] for mandatory use in the sale of unimproved property where the intended use is for one to four family residences.

§537.22.Standard Contract Form TREC No. 11-8 [11-7], Addendum for "Back-Up" Contract.

The Texas Real Estate Commission (Commission) adopts by reference standard contract form TREC No. 11-8 [11-7] approved by the Commission in 2024 [2012] for mandatory use as an addendum to be attached to promulgated forms of contracts which are second or "back-up" contracts.

§537.28.Standard Contract Form TREC No. 20-18 [20-17], One to Four Family Residential Contract (Resale).

The Texas Real Estate Commission (Commission) adopts by reference standard contract form TREC No. 20-18 [20-17] approved by the Commission in 2024 [2022] for mandatory use in the resale of residential real estate.

§537.30.Standard Contract Form TREC No. 23-19 [23-18], New Home Contract (Incomplete Construction).

The Texas Real Estate Commission (Commission) adopts by reference standard contract form TREC No. 23-19 [23-18] approved by the Commission in 2024 [2022] for mandatory use in the sale of a new home where construction is incomplete.

§537.31.Standard Contract Form TREC No. 24-19 [24-18], New Home Contract (Completed Construction).

The Texas Real Estate Commission (Commission) adopts by reference standard contract form TREC No. 24-19 [24-18] approved by the Commission in 2024 [2022] for mandatory use in the sale of a new home where construction is completed.

§537.32.Standard Contract Form TREC No. 25-16 [25-15], Farm and Ranch Contract.

The Texas Real Estate Commission (Commission) adopts by reference standard contract form TREC No. 25-16 [25-15] approved by the Commission in 2024 [2022] for mandatory use in the sale of a farm or ranch.

§537.37.Standard Contract Form TREC No. 30-17 [30-16], Residential Condominium Contract (Resale).

The Texas Real Estate Commission (Commission) adopts by reference standard contract form TREC No. 30-17 [30-16] approved by the Commission in 2024 [2022] for mandatory use in the resale of a residential condominium unit.

§537.39.Standard Contract Form TREC No. 32-5 [32-4], Condominium Resale Certificate.

The Texas Real Estate Commission (Commission) adopts by reference standard contract form TREC No. 32-5 [32-4] approved by the Commission in 2024 [2015] for voluntary use as a condominium resale certificate.

§537.46.Standard Contract Form TREC No. 39-10 [39-9], Amendment to Contract.

The Texas Real Estate Commission (Commission) adopts by reference standard contract form TREC No. 39-10 [39-9] approved by the Commission in 2024 [2022] for mandatory use as an amendment to promulgated forms of contracts.

§537.47.Standard Contract Form TREC No. 40-11 [40-10], Third Party Financing Addendum.

The Texas Real Estate Commission (Commission) adopts by reference standard contract form, TREC No. 40-11 [40-10] approved by the Commission in 2024 [2022] for mandatory use as an addendum to be added to promulgated forms of contracts when there is a condition for third party financing. §537.67.Standard Contract Form TREC No. 60-0, Addendum for Section 1031 Exchange.

The Texas Real Estate Commission (Commission) adopts by reference standard contract form TREC No. 60-0 approved by the Commission in 2024 for mandatory use as an addendum to be attached to promulgated contract forms where either party intends to use the property to accomplish a Section 1031 Exchange.

The agency certifies that legal counsel has reviewed the proposal and found it to be within the state agency's legal authority to adopt.

Filed with the Office of the Secretary of State on August 23, 2024.

TRD-202403895

Abby Lee

Deputy General Counsel

Texas Real Estate Commission

Earliest possible date of adoption: October 6, 2024

For further information, please call: (512) 936-3057