(a) All decisions and orders of the board pertaining to a contested case shall be made during a public meeting duly noticed pursuant to the Chapter 551 of the Texas Government Code (relating to Open Meetings). The board's decisions and orders shall be in writing and reported in the minutes of the meeting. An order of the board shall include findings of fact and conclusions of law, separately stated.

(b) A copy of the decision or order of the board shall be delivered or mailed to all parties or, if represented by counsel, to their attorney of record.

(c) The board may change a finding of fact or conclusion of law made by the ALJ, or may vacate or modify an order issued by the ALJ, only if the board determines:

(1) that the ALJ did not properly apply or interpret applicable law, agency rules, written policies provided to the ALJ with a written statement of applicable rules or policies, or prior administrative decisions;

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

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

(d) If the board modifies, amends, or changes the ALJ's recommended order, an order shall be prepared reflecting the board's changes and the board's specific reason and legal basis for the changes.

(e) A board decision or order is administratively final when:

(1) there is no filing of a timely motion for rehearing; or

(2) a timely motion for rehearing is filed and the latest timely filed motion for rehearing is overruled by board order or operation of law.

(f) The board shall make the final decision in assessing the discipline provided for in §901.501 of the Act (relating to Disciplinary Powers of Board) and §519.41 of this chapter (relating to Disciplinary Powers of the Board).

(g) Interpretive comment. Section 2001.058(e) of the APA provides the standard that a governmental agency must follow in changing a recommendation of an ALJ of SOAH. Case law makes it clear that the standard must be strictly adhered to in order for the change to the recommendation to be valid. The above language in subsection (c) of this section addresses the required standards.

Source Note: The provisions of this §519.72 adopted to be effective June 9, 2004, 29 TexReg 5634; amended to be effective February 15, 2007, 32 TexReg 530; amended to be effective June 11, 2008, 33 TexReg 4505; amended to be effective February 9, 2012, 37 TexReg 495; amended to be effective December 7, 2016, 41 TexReg 9517; amended to be effective June 5, 2019, 44 TexReg 2722