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S.B. No. 382
AN ACT
relating to disciplinary proceedings and contested cases involving
real estate appraisers and appraiser trainees.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 1103.451, Occupations Code, is amended
by amending Subsections (a), (b), and (c), and adding Subsection
(e) to read as follows:
(a) Any person, including a member of the board, may
initiate the complaint process under this subchapter by filing with
the board a written [an affidavit stating the] complaint on a form
prescribed by the board.
(b) The board, on its own motion, may file a formal
complaint against:
(1) a certified or licensed appraiser; or
(2) an appraiser trainee who is approved by the board
under Subchapter H.
(c) A complaint alleging that a certified or licensed
appraiser or an approved appraiser trainee has violated a rule of
professional conduct adopted by the board must be filed with the
board.
(e) A complaint alleging a violation by a person licensed,
certified, or approved under this chapter may not be terminated
solely on the basis that the person fails to renew the license,
certificate, or approval.
SECTION 2. Subsection (c), Section 1103.452, Occupations
Code, is amended to read as follows:
(c) If the board determines that a complaint does not
present facts that are grounds for disciplinary action, the board
or the commissioner shall dismiss the complaint and may not take
further action.
SECTION 3. Subsection (b), Section 1103.455, Occupations
Code, is amended to read as follows:
(b) The report must contain:
(1) statements of fact;
(2) the recommendations of the investigator; and
(3) the position or defense of the investigated
appraiser or appraiser trainee.
SECTION 4. Section 1103.456, Occupations Code, is amended
to read as follows:
Sec. 1103.456. [BOARD] ACTION BASED ON REPORT. Based on
the report submitted under Section 1103.455, the board may:
(1) order further investigation of the complaint;
(2) permit the appraiser or appraiser trainee who is
the subject of the complaint to attend [appear before the board for]
an informal discussion as provided by Section 1103.457;
(3) determine that there is not probable cause to
believe that a violation occurred and dismiss the case; or
(4) determine that there is probable cause to believe
that a violation occurred and proceed as the complainant with a
contested case hearing under Subchapter K.
SECTION 5. Subsection (a), Section 1103.457, Occupations
Code, is amended to read as follows:
(a) On the action [motion] of the board or on request of the
appraiser or appraiser trainee who is the subject of a complaint,
the board may permit the appraiser or appraiser trainee an
opportunity to appear before the board or an agent of the board for
a voluntary, informal discussion of the facts and circumstances of
the alleged violation.
SECTION 6. Subsections (a), (c), and (e), Section 1103.458,
Occupations Code, are amended to read as follows:
(a) The board may negotiate a settlement and enter into a
consent order with an appraiser or appraiser trainee who is the
subject of a complaint under this subchapter.
(c) A consent order must be:
(1) approved by the board; and
(2) signed by the commissioner [presiding officer of
the board] and the appraiser or appraiser trainee who is the subject
of the complaint.
(e) An appraiser or appraiser trainee who consents to
negotiate under this section waives the right to notice and the
opportunity to be heard under Chapter 2001, Government Code, during
the negotiation.
SECTION 7. Subsections (a), (c), and (d), Section 1103.459,
Occupations Code, are amended to read as follows:
(a) The board may enter into a consent agreement as provided
by this section rather than taking action against a [first-time]
violator of the rules of professional conduct adopted by the board.
(c) A consent agreement must be:
(1) approved by the board; and
(2) signed by the commissioner [presiding officer of
the board] and the appraiser or appraiser trainee who is the subject
of the complaint.
(d) An appraiser or appraiser trainee may be prosecuted for
failure to comply with a consent agreement.
SECTION 8. Subsections (b) and (c), Section 1103.502,
Occupations Code, are amended to read as follows:
(b) The notice must:
(1) state the time and place of the hearing; and
(2) state that the appraiser or appraiser trainee must
submit an answer as prescribed by Section 1103.505 not later than
the 20th day after the date the appraiser or appraiser trainee
receives the notice.
(c) Not later than the 30th day before the hearing date, the
board shall personally deliver or send by certified mail, return
receipt requested, to the appraiser or appraiser trainee:
(1) the notice prescribed by this section; and
(2) the statement of charges prescribed by Section
1103.503.
SECTION 9. Sections 1103.503, 1103.504, and 1103.505,
Occupations Code, are amended to read as follows:
Sec. 1103.503. STATEMENT OF CHARGES. (a) The attorney
representing the board [general] shall prepare the statement of
charges.
(b) The statement of charges must:
(1) state each act or omission with which the
appraiser or appraiser trainee is charged, including any standard
of professional practice or rule of professional conduct alleged to
have been violated; and
(2) be sufficiently detailed to enable the appraiser
or appraiser trainee to prepare a defense.
Sec. 1103.504. ATTORNEY GENERAL REPRESENTATION.
[(a)] The attorney general shall[:
[(1) review and approve each statement of charges and
notice of hearing prepared by the board; and
[(2)] provide legal representation for the public
interest in all proceedings before the board[.
[(b) The attorney general shall represent the public
interest] and may not represent the board in a contested case before
the board.
Sec. 1103.505. ANSWER. The appraiser's or appraiser
trainee's answer must contain:
(1) the name, address, and telephone number of the
appraiser or appraiser trainee;
(2) a specific statement regarding any allegation in
the complaint, which must:
(A) be in the form of an admission or denial; and
(B) contain any explanation or other statement of
mitigating circumstances the appraiser or appraiser trainee
determines relevant; and
(3) any additional information the appraiser or
appraiser trainee determines relevant to the investigation that may
assist in deciding the contested case.
SECTION 10. The heading to Section 1103.508, Occupations
Code, is amended to read as follows:
Sec. 1103.508. HEARING [BEFORE BOARD].
SECTION 11. Subsection (c), Section 1103.508, Occupations
Code, is amended to read as follows:
(c) As an independent subdivision of the Texas Real Estate
Commission, the [The] board may provide for the Texas Real Estate
Commission's [an] administrative law judge to act as presiding
officer to conduct the hearing and issue final decisions for the
board.
SECTION 12. Section 1103.510, Occupations Code, is amended
to read as follows:
Sec. 1103.510. FAILURE TO APPEAR. (a) If an appraiser or
appraiser trainee receives proper notice of a contested case
hearing but does not appear in person at the hearing, the board and
presiding officer may conduct the hearing or enter an order, as the
board determines appropriate.
(b) The appraiser or appraiser trainee is bound by the
results of the hearing to the same extent as if the appraiser or
appraiser trainee had appeared.
SECTION 13. Sections 1103.513 through 1103.516,
Occupations Code, are amended to read as follows:
Sec. 1103.513. ORDER OF PROCEEDINGS. A contested case
hearing shall be conducted in the following order, subject to
modification at the discretion of the board:
(1) the presiding officer shall read a summary of the
charges and answers to the charges and other responsive pleadings
filed by the appraiser or appraiser trainee before the hearing;
(2) the attorney representing the board [general]
shall make a brief opening statement, including a summary of the
charges and a list of the witnesses and documents to support the
charges;
(3) the appraiser or appraiser trainee may make an
opening statement, including the names of any witnesses the
appraiser or appraiser trainee may call;
(4) the attorney representing the board [general]
shall present evidence, concluding with a summary of the evidence
for the state;
(5) the appraiser or appraiser trainee shall present
evidence;
(6) the attorney representing the board [general] may
present rebuttal evidence;
(7) the appraiser or appraiser trainee may present
rebuttal evidence; and
(8) the closing arguments shall be made in the
following order:
(A) the attorney representing the board
[general];
(B) the appraiser or appraiser trainee; and
(C) the attorney representing the board
[general] on rebuttal.
Sec. 1103.514. COPIES OF EVIDENCE. A copy of each document
offered as evidence at a contested case hearing shall be provided to
the opposing party [and to board members].
Sec. 1103.515. RESPONSE TO CERTAIN ACCUSATIONS. (a) To
the extent an appraiser or appraiser trainee believes the appraiser
or appraiser trainee is being asked to reply to an accusation,
innuendo, or fact for the first time in a contested case hearing,
the appraiser or appraiser trainee may respond to the board in
writing not later than the 10th day after the last day of the
hearing [or at a subsequent scheduled board meeting].
(b) If the appraiser or appraiser trainee chooses to respond
as provided by this section, the attorney representing the board
[general] is entitled to continue to present evidence during the
hearing.
Sec. 1103.516. DIRECT EXAMINATION. In a contested case
hearing, the presiding officer [or other board members] may conduct
a direct examination of a witness at any stage of the witness's
testimony.
SECTION 14. Subsection (a), Section 1103.517, Occupations
Code, is amended to read as follows:
(a) The board [presiding officer] in a contested case
hearing may grant a witness immunity from disciplinary action by
the board [only if the board members hearing the case vote
unanimously to grant immunity].
SECTION 15. Section 1103.518, Occupations Code, is amended
to read as follows:
Sec. 1103.518. BOARD ACTION AFTER HEARING. On conclusion
of a [By a majority vote of the board members hearing the] contested
case hearing and on submission of all written responses allowed
under Section 1103.515, the board:
(1) shall make findings of fact and conclusions of
law; and
(2) may take one or more of the following actions:
(A) dismiss the charges, including issuing an
order declaring that the case file is confidential;
(B) suspend or revoke the appraiser's
certificate or license or the appraiser trainee's approval;
(C) impose a period of probation with or without
conditions;
(D) require the appraiser to submit to
reexamination for a certificate or license;
(E) require the appraiser or appraiser trainee to
participate in additional professional education or continuing
education;
(F) issue a public or private reprimand or a
warning;
(G) issue a consent order; or
(H) impose an administrative penalty as
prescribed by Section 1103.552.
SECTION 16. Subsection (b), Section 1103.457, Subsection
(b), Section 1103.458, Subsection (b), Section 1103.459,
Subsection (b), Section 1103.508, and Section 1103.509,
Occupations Code, are repealed.
SECTION 17. The changes in law made by this Act apply only
to a disciplinary proceeding or a contested case hearing under
Chapter 1103, Occupations Code, that is conducted on or after the
effective date of this Act.
SECTION 18. This Act takes effect September 1, 2005.
______________________________ ______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 382 passed the Senate on
March 31, 2005, by the following vote: Yeas 30, Nays 0.
______________________________
Secretary of the Senate
I hereby certify that S.B. No. 382 passed the House on
May 20, 2005, by a non-record vote.
______________________________
Chief Clerk of the House
Approved:
______________________________
Date
______________________________
Governor