22 Tex. Admin. Code § 159.204 - 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 AMC named on the Complaint Intake Form. Upon
receipt of a signed Complaint Intake Form, staff will:
(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 AMC Act or Board rules that:
(1) evidence serious deficiencies, including:
(A) Fraud;
(B) Identity theft;
(C) Unlicensed activity;
(D) Ethical violations;
(E) Violations of appraiser independence;
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)
If the staff determines at any time that the complaint is not within the
Board 's jurisdiction, or that no violation exists, the complaint will be
dismissed with no further processing. The Board or the Executive Director may
delegate to staff the duty to dismiss complaints.
(d) A complaint alleging mortgage fraud or in
which mortgage fraud is suspected:
(1) may be
investigated covertly; and
(2) will
be referred to the appropriate prosecutorial authorities.
(e) Staff may request additional information
necessary to determine how to proceed with the complaint from any
person .
(f) As part of a
preliminary investigative review, a copy of the Complaint Intake Form and all
supporting documentation will be sent to the Respondent unless the complaint
qualifies for covert investigation and the TALCB Division deems covert
investigation appropriate.
(g) 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.
(h)
The Respondent must 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 must include the following:
(1) A copy of the appraisal report (s), if
any, that is (are) the subject of the complaint;
(2) A copy of the documents or other business
records associated with the appraisal report (s), incident(s), or conduct listed
in the complaint, with the following signed statement attached to the response:
I SWEAR AND AFFIRM THAT EXCEPT AS SPECIFICALLY SET FORTH HEREIN, THE COPY OF
EACH AND EVERY BUSINESS RECORD ACCOMPANYING THIS RESPONSE IS A TRUE AND CORRECT
COPY OF THE ACTUAL BUSINESS RECORD, AND NOTHING HAS BEEN ADDED TO OR REMOVED
FROM THIS BUSINESS RECORD OR ALTERED. (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 original documentation,
as long as it is conspicuously labeled as additional documentation and kept
separate from the original documentation. 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.
(i) Staff will
evaluate the complaint within three months of receipt of the response from
Respondent to determine whether sufficient evidence of a potential violation of
the AMC Act or Board rules exists to pursue investigation and possible formal
disciplinary action. If staff determines there is no jurisdiction, no violation
exists, or there is insufficient evidence to prove a violation, or the
complaint warrants dismissal, including contingent dismissal, under subsection
(m) of this section, the complaint will be dismissed with no further
processing.
(j) A formal complaint
will be opened and investigated by a staff investigator or investigative
committee if:
(1) the informal complaint is
not dismissed under subsection (i) of this section; or
(2) staff opens a formal complaint on its own
motion.
(k) Written
notice that a formal complaint has been opened will be sent to the Complainant
and Respondent .
(l) The staff
investigator or investigative committee assigned to investigate a formal
complaint will prepare a report detailing all findings.
(m) In determining the proper disposition of
a formal complaint pending as of or filed after the effective date of this
subsection, and subject to the maximum penalties authorized under Chapter
1104, Texas
Occupations Code, staff, the administrative law judge in a contested case
hearing and the Board shall consider the following sanctions guidelines and
list of non-exclusive factors as demonstrated by the evidence in the record of
a contested case proceeding.
(1) For the
purposes of these sanctions guidelines:
(A)
An AMC will not be considered to have had a prior warning letter, contingent
dismissal or discipline if that prior warning letter, contingent dismissal or
discipline occurred more than ten years ago;
(B) A prior warning letter, contingent
dismissal or discipline given less than ten years ago will not be considered
unless the Board took final action against the AMC before the date of the
incident that led to the subsequent disciplinary action;
(C) Prior discipline is defined as any
sanction, including an administrative penalty, received under a Board final or
agreed order;
(D) A violation
refers to a violation of any provision of the AMC Act or Board rules;
(E) "Minor deficiencies" is defined as
violations of the AMC Act or Board rules which do not call into question the
qualification of the AMC for licensure in Texas;
(F) "Serious deficiencies" is defined as
violations of the Act or Board rules Board rules which evidence minor
deficiencies will result in one of the following outcomes:
(G) "Remedial measures" include training,
auditing, or any combination thereof; and
(H) The terms of a contingent dismissal agreement will be in
writing and agreed to by all parties. Staff may dismiss the complaint with a
non-disciplinary warning upon written agreement that the Respondent will
complete all remedial measures within the agreed-upon timeframe. If the
Respondent fails to meet the deadlines in the agreement, the Respondent 's
license or certification will be automatically set to inactive status until the
Respondent completes the remedial measures set forth in the
agreement.
(2) List of
factors to consider in determining proper disposition of a formal complaint:
(A) Whether the Respondent has previously
received a warning letter or contingent dismissal, and if so, the similarity of
facts or violations in that previous complaint to the facts or violations in
the instant complaint matter;
(B)
Whether the Respondent has previously been disciplined;
(C) If previously disciplined, the nature of
the discipline, including:
(i) Whether it
concerned the same or similar violations or facts;
(ii) The nature of the disciplinary
sanctions imposed;
(iii) The length
of time since the previous discipline;
(D) The difficulty or complexity of the incident at
issue;
(E) Whether the violations
found were of a negligent, grossly negligent or a knowing or intentional
nature;
(F) Whether the violations
found involved a single appraisal or instance of conduct or multiple appraisals
or instances of conduct;
(G) To
whom were the appraisal report (s) or the conduct directed, with greater weight
placed upon appraisal report (s) or conduct directed at:
(i) A financial institution or their agent, contemplating a
lending decision based, in part, on the appraisal report (s) or conduct at
issue;
(ii) The Board ;
(iii) A matter which is actively being
litigated in a state or federal court or before a regulatory body of a state or
the federal government;
(iv)
Another government agency or government sponsored entity, including, but not
limited to, the United States Department of Veteran's Administration, the
United States Department of Housing and Urban Development, the State of Texas,
Fannie Mae, and Freddie Mac;
(v) A
consumer contemplating a real property transaction involving the consumer's
principal residence;
(H)
Whether Respondent 's violations caused any harm, including financial harm, and
the amount of such harm;
(I)
Whether Respondent acknowledged or admitted to violations and cooperated with
the Board 's investigation prior to any contested case hearing;
(J) The business operating history of the
AMC, including:
(i) The size of the AMC's
appraiser panel;
(ii) The length
of time Respondent has been licensed as an AMC in Texas;
(iii) The length of time the AMC has been
conducting business operations, in any jurisdiction;
(iv) The nature and extent of any remedial
measures and sanctions the Respondent had received related to the areas in
which violations were found; and
(v) Respondent 's affiliation with other business
entities;
(K) Whether
Respondent can improve the AMC's practice through the use of remedial measures;
and
(L) Whether Respondent has
voluntarily completed remedial measures prior to the resolution of the
complaint.
(3) The
sanctions guidelines contained herein shall be employed in conjunction with the
factors listed in paragraph (2) of this subsection to assist in reaching the
proper disposition of a formal complaint:
(A)
1st Time Discipline Level 1--violations of the AMC Act or Board rules which
evidence minor deficiencies will result in one of the following outcomes:
(i) Dismissal;
(ii) Dismissal with non-disciplinary warning
letter;
(iii) Contingent dismissal
with remedial measures
(B) 1st Time Discipline Level 2--violations
of the AMC Act or Board rules which evidence serious deficiencies will result
in one of the following outcomes:
(i)
Contingent dismissal with remedial measures;
(ii) A final order which imposes one or more
of the following:
(I) Remedial
measures;
(II) Required adoption
and implementation of written, preventative policies or procedures;
(III) A probationary period with provisions
for monitoring the AMC;
(IV)
Monitoring and/or preapproval of AMC panel removals for a specified period of
time;
(V) Monitoring and/or
preapproval of the licensed activities of the AMC for a specified time period
or until specified conditions are satisfied;
(VI) Minimum of $1,000 in administrative
penalties per act or omission which constitutes a violation(s) of the AMC Act
or Board rules; each day of a continuing violation is a separate
violation.
(C)
1st Time Discipline Level 3--violations of the AMC Act or Board rules which
evidence serious deficiencies and were done with knowledge, deliberately,
willfully, or with gross negligence will result in a final order which imposes
one or more of the following:
(i) A period of
suspension;
(ii) A
revocation;
(iii) Remedial
measures;
(iv) Required adoption
and implementation of written, preventative policies or procedures;
(v) A probationary period with provisions for
monitoring the AMC;
(vi) Monitoring
and/or preapproval of AMC panel removals for a specified period of
time;
(vii) Monitoring and/or
preapproval of the licensed activities of the AMC for a specified time period
or until specified conditions are satisfied;
(viii) Minimum of $2,500 in administrative
penalties per act or omission which constitutes a violation(s) of the AMC Act
or Board rules; each day of a continuing violation is a separate
violation.
(D) 2nd Time
Discipline Level 1--violations of the AMC Act or Board rules which evidence
minor deficiencies will result in one of the following outcomes:
(i) Dismissal;
(ii) Dismissal with non-disciplinary warning
letter;
(iii) Contingent dismissal
with remedial measures;
(iv) A
final order which imposes one or more of the following:
(I) Remedial measures;
(II) Required adoption and implementation of
written, preventative policies or procedures;
(III) A probationary period with provisions
for monitoring the AMC;
(IV)
Monitoring and/or preapproval of AMC panel removals for a specified period of
time;
(V) Monitoring and/or
preapproval of the licensed activities of the AMC for a specified time period
or until specified conditions are satisfied;
(VI) Minimum of $1,000 in administrative
penalties per act or omission which constitutes a violation(s) of the AMC Act
or Board rules; each day of a continuing violation is a separate
violation.
(E)
2nd Time Discipline Level 2--violations of the AMC Act or Board rules which
evidence serious deficiencies will result in a final order which imposes one or
more of the following:
(i) A period of
suspension;
(ii) A
revocation;
(iii) Remedial
measures;
(iv) Required adoption
and implementation of written, preventative policies or procedures;
(v) A probationary period with provisions for
monitoring the AMC;
(vi) Monitoring
and/or preapproval of AMC panel removals for a specified period of
time;
(vii) Monitoring and/or
preapproval of the licensed activities of the AMC for a specified time period
or until specified conditions are satisfied;
(viii) Minimum of $2,500 in administrative
penalties per act or omission which constitutes a violation(s) of AMC Act or
Board rules; each day of a continuing violation is a separate
violation.
(F) 2nd Time
Discipline Level 3--violations of the AMC Act or Board rules which evidence
serious deficiencies and were done with knowledge, deliberately, willfully, or
with gross negligence will result in a final order which imposes one or more of
the following:
(i) A period of
suspension;
(ii) A
revocation;
(iii) Remedial
measures;
(iv) Required adoption
and implementation of written, preventative policies or procedures;
(v) A probationary period with provisions for
monitoring the AMC;
(vi) Monitoring
and/or preapproval of AMC panel removals for a specified period of
time;
(vii) Monitoring and/or
preapproval of the licensed activities of the AMC for a specified time period
or until specified conditions are satisfied;
(viii) Minimum of $4,000 in administrative
penalties per act or omission which constitutes a violation(s) of the AMC Act
or Board rules; each day of a continuing violation is a separate
violation.
(G) 3rd Time
Discipline Level 1--violations of the AMC Act or Board rules which evidence
minor deficiencies will result in a final order which imposes one or more of
the following:
(i) A period of
suspension;
(ii) A
revocation;
(iii) Remedial
measures;
(iv) Required adoption
and implementation of written, preventative policies or procedures;
(v) A probationary period with provisions for
monitoring the AMC;
(vi) Monitoring
and/or preapproval of AMC panel removals for a specified period of
time;
(vii) Monitoring and/or
preapproval of the licensed activities of the AMC for a specified time period
or until specified conditions are satisfied;
(viii) Minimum of $2,500 in administrative
penalties per act or omission which constitutes a violation(s) of the AMC Act
or Board rules; each day of a continuing violation is a separate
violation.
(H) 3rd Time
Discipline Level 2--violations of the AMC Act or Board rules which evidence
serious deficiencies will result in a final order which imposes one or more of
the following:
(i) A period of
suspension;
(ii) A
revocation;
(iii) Remedial
measures;
(iv) Required adoption
and implementation of written, preventative policies or procedures;
(v) A probationary period with provisions for
monitoring the AMC;
(vi) Monitoring
and/or preapproval of AMC panel removals for a specified period of
time;
(vii) Monitoring and/or
preapproval of the licensed activities of the AMC for a specified time period
or until specified conditions are satisfied;
(viii) Minimum of $4,000 in administrative
penalties per act or omission which constitutes a violation(s) of the AMC Act
or Board rules; each day of a continuing violation is a separate
violation.
(I) 3rd Time
Discipline Level 3--violations of the AMC Act or Board rules which evidence
serious deficiencies and were done with knowledge, deliberately, willfully, or
with gross negligence will result in a final order which imposes one or more of
the following:
(i) A revocation; and
(ii) Minimum of $7,000 in administrative
penalties per act or omission which constitutes a violation(s) of Board Rules,
or the AMC Act ; each day of a continuing violation is a separate
violation.
(J) 4th Time
Discipline--violations of the AMC Act or Board rules will result in a final
order which imposes one or more of the following:
(i) A revocation; and
(ii) $10,000 in administrative penalties per
act or omission which constitutes a violation(s) of the AMC Act or Board rules;
each day of a continuing violation is a separate violation.
(K) Unlicensed AMC activity will result in a
final order which imposes a $10,000 in administrative penalties per unlicensed
AMC activity; each day of a continuing violation is a separate
violation.
(4) In
addition, staff may recommend any or all of the following:
(A) Reducing or increasing the recommended
sanction or administrative penalty for a complaint based on documented factors
that support the deviation, including but not limited to those factors
articulated under paragraph (2) of this subsection;
(B) Probating all or a portion of any
remedial measure, sanction, or administrative penalty for a period not to
exceed three years;
(C) Requiring
additional reporting requirements;
(D) Payment of costs expended by the Board
associated with the investigation, and if applicable, a contested case,
including legal fees and administrative costs; and
(E) Such other recommendations, with
documented support, as will achieve the purposes of the AMC Act or Board
rules.
(n) 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 .
(o) Agreed resolutions of complaint matters
pursuant to Texas Occupations Code §
1104.2081 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.
Notes
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