(a) Informal disposition of any contested case involving a respondent may be made through an informal conference pursuant to Texas Occupations Code, §1101.660.

(b) A respondent may request an informal conference; however, the decision to hold a conference shall be made by the Director of Enforcement.

(c) An informal conference shall be voluntary and shall not be a prerequisite to a formal hearing.

(d) An informal conference may be conducted in person or by electronic, telephonic, or written communication.

(e) The Director of Enforcement or the director's designee shall decide upon the time, date, and place of the informal conference and provide written notice to the respondent. Notice shall be provided by certified mail no less than ten days prior to the date of the conference to the last known mailing address of the respondent. The ten days shall begin on the date of mailing. The respondent may waive the ten-day notice requirement.

(f) A copy of the Commission's rules concerning informal conferences shall be enclosed with the notice of the informal conference. The notice shall inform the respondent of the following:

(1) that the respondent may be represented by legal counsel;

(2) that the respondent may offer documentary evidence as may be appropriate;

(3) that at least one public member of the Commission shall be present;

(4) that two staff members, including the staff attorney assigned to the case, with experience in the regulatory area that is the subject of the proceedings, shall be present;

(5) that the respondent's attendance and participation is voluntary; and

(6) that the complainant involved in the alleged violations may be present.

(g) The notice of the informal conference shall be sent to the complainant at their last known mailing address. The complainant shall be informed that they may appear in person or may submit a written statement for consideration at the informal conference.

(h) The conference shall be informal and need not follow the procedures established in this chapter for contested cases and formal hearings.

(i) The respondent, the respondent's attorney, the Commission member, and the staff members may question the respondent or complainant, make relevant statements, present statements of persons not in attendance, and present such other evidence as may be appropriate.

(j) The staff attorney assigned to the case shall attend each informal conference. The Commission member or other staff member may call upon the attorney at any time for assistance in the informal conference.

(k) No formal record of the proceedings of the informal conference shall be made or maintained.

(l) The complainant may be excluded from the informal conference except during the complainant's oral presentation. The respondent, the respondent's attorney, and Commission staff may remain for all portions of the informal conference, except for consultation between the Commission member and Commission staff.

(m) The complainant shall not be considered a party in the informal conference but shall be given the opportunity to be heard if the complainant attends. Any written statement submitted by the complainant shall be reviewed at the conference.

(n) At the conclusion of the informal conference, the Commission member or staff members may propose an informal settlement of the contested case. The proposed settlement may include administrative penalties or any disciplinary action authorized by the Act. The Commission member or staff members may also recommend that no further action be taken.

(o) The respondent may either accept or reject the proposed settlement recommendations at the conference. If the proposed settlement recommendations are accepted, a proposed agreed order shall be prepared by the staff attorney and forwarded to the respondent. The order shall contain agreed findings of fact and conclusions of law. The respondent shall execute the proposed agreed order and return the executed order to the Commission not later than the 10th day after their receipt of the proposed agreed order. If the respondent fails to sign and return the executed proposed agreed order within the stated time period, the inaction shall constitute rejection of the proposed settlement recommendation.

(p) If the respondent rejects the proposed settlement recommendation, the matter shall be referred to the Director of Enforcement for appropriate action.

(q) If the respondent signs and accepts the proposed agreed order, it shall be signed by the staff attorney and submitted to the Executive Director for approval.

(r) If the Executive Director does not approve a proposed agreed order, the respondent shall be so informed and the matter shall be referred to the Director of Enforcement for other appropriate action.

(s) A license holder's opportunity for an informal conference under this subchapter shall satisfy the requirements of the APA, §2001.054(c).

(t) The Commission may order a license holder to pay a refund to a consumer as provided in an agreement resulting from an informal conference instead of or in addition to imposing an administrative penalty pursuant to Texas Occupations Code, §1101.659. The amount of a refund ordered as provided in an agreement resulting from an informal settlement conference may not exceed the amount the consumer paid to the license holder for a service regulated by the Act and this title. The Commission may not require payment of other damages or estimate harm in a refund order.

Source Note: The provisions of this §533.25 adopted to be effective May 21, 2014, 39 TexReg 3856; amended to be effective May 25, 2022, 47 TexReg 3050