Texas Register, Volume 34, Number 45, Pages 7717-7924, November 06, 2009 Page: 7,820
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adopt rules of practice stating the nature and requirements of all
available formal and informal procedures; (2) index, cross-index
to statute, and make available for public inspection all rules
and other written statements of policy or interpretations that
are prepared, adopted, or used by the agency in discharging
its functions; and (3) index, cross-index to statute, and make
available for public inspection all final orders, decisions, and
opinions. The Government Code 2001.062(a) provides that, in
a contested case, if a majority of the state agency officials who
are to render a final decision have not heard the case or read the
record, the decision, if adverse to a party other than the agency
itself, may not be made until: (1) a PFD is served on each party;
and (2) an opportunity is given to each adversely affected party
to file exceptions and present briefs to the officials who are to
render the decision. Section 2001.062(b) states that, if a party
files exceptions or presents briefs, an opportunity shall be given
to each other party to file replies to the exceptions or briefs.
213.23. Decision of the Board.
(a) Except as to those matters expressly delegated to the ex-
ecutive director for ratification, either the Board or the Eligibility and
Disciplinary Committee, may make final decisions in all matters relat-
ing to the granting or denial of a license or permit, discipline, temporary
suspension, or administrative and civil penalties.
(b) Any party of record who is adversely affected by the pro-
posal for decision of the judge shall have the opportunity to file ex-
ceptions and a brief to the proposal for decision within 15 days after
the date of service of the proposal for decision. A reply to the excep-
tions may be filed by the other party within 15 days of the filing of the
exceptions. Exceptions and replies shall be filed with the judge with
copies served on the opposing party. The proposal for decision may
be amended by the judge pursuant to the exceptions, replies, or briefs
submitted by the parties without again being served on the parties.
(c) The proposal for decision may be acted on by the Board
or the Eligibility and Disciplinary Committee, in accordance with this
section, after the expiration of 10 days after the filing of replies to ex-
ceptions to the proposal for decision or upon the day following the day
exceptions or replies to exceptions are due if no such exceptions or
replies are filed.
(d) Parties shall have an opportunity to file written exceptions
and briefs with the Board concerning a proposal for decision. An op-
portunity shall be given to file a response to written exceptions and
briefs. However, a Respondent shall not be permitted to make an oral
presentation to the Board concerning a proposal for decision unless the
Respondent has first filed written exceptions or briefs with the Board
at least 21 days prior to the date of the next regularly scheduled Board
meeting where the Board will deliberate on the proposal for decision.
A Respondent shall not be permitted to make an oral presentation to the
Board concerning a proposed modification to a proposal for decision
unless the Respondent has first filed a written response to the proposed
modification with the Board at least 10 days prior to the date of the
regularly scheduled Board meeting where the Board will deliberate on
the proposal for decision.
(e) It is the policy of the Board to change a finding of fact or
conclusion of law in a proposal for decision or to vacate or modify the
proposed order of a judge when, the Board determines:
(1) that the judge did not properly apply or interpret ap-
plicable law, agency rules, written policies provided by staff or prior
(2) that a prior administrative decision on which the judge
relied is incorrect or should be changed; or
(3) that a technical error in a finding of fact should be
(f) If the Board modifies, amends, or changes the recom-
mended order of the judge, an order shall be prepared reflecting the
Board's changes as stated in the record of the meeting and stating
the specific reason and legal basis for the changes made according to
subsection (e) of this section.
(g) An order of the Board shall be in writing and may be signed
by the executive director on behalf of the Board.
(h) A copy of the order shall be mailed to all parties and to the
party(s last known employer as a nurse.
(i) The decision of the Board is immediate, final, and appeal-
able upon the signing of the written order by the executive director on
behalf of the Board where:
(1) the Board finds and states in the order that an imminent
peril to the public health, safety, and welfare requires immediate effect
of the order; and
(2) the order states it is final and effective on the date ren-
(j) A motion for rehearing shall not be a prerequisite for appeal
of the decision where the order of the Board contains the finding set
forth in subsection (i) of this section.
(k) Motions for rehearing are controlled by Texas Government
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's
Filed with the Office of the Secretary of State on October 26,
Assistant General Counsel
Texas Board of Nursing
Effective date: November 15, 2009
Proposal publication date: August 28, 2009
For further information, please call: (512) 305-6822
22 TAC 213.32
INTRODUCTION. The Texas Board of Nursing (Board) adopts
amendments and new paragraphs to 213.32, concerning
Schedule of Administrative Fine(s). New 213.32(2) is adopted
with changes to the proposed text as published in the Septem-
ber 4, 2009, issue of the Texas Register (34 TexReg 6078).
New 213.32(1), (3), and (4), and amended 213.32(5), (6),
and (7) are adopted without changes to the proposed text.
REASONED JUSTIFICATION. New 213.32(1) - (4) is adopted
under the Occupations Code 301.651 - 301.657, which
authorizes the use of corrective actions, and is necessary to
implement Senate Bill (SB) 1415, enacted by the 81st Legis-
lature, Regular Session, effective September 1, 2009, which
adds new Subchapter N to the Occupations Code Chapter 301.
Amended 213.32(5) - (7) is adopted under the Occupations
Code 301.453(a), 301.4531, 301.501, and 301.502 and is
necessary to revise and clarify the disciplinary sanctions and
34 TexReg 7820 November 6, 2009
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Texas. Secretary of State. Texas Register, Volume 34, Number 45, Pages 7717-7924, November 06, 2009, periodical, November 6, 2009; Austin, Texas. (texashistory.unt.edu/ark:/67531/metapth90877/m1/101/: accessed December 12, 2018), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; crediting UNT Libraries Government Documents Department.