22 Tex. Admin. Code § 311.2 - Procedures Regarding Complaints Filed against Board Members

(a) The following procedures are applicable with regard to complaints against a board member, if the complaint alleges violations of the laws and rules governing the practice of pharmacy.

(1) The complaint shall be reviewed by the executive director, who may refer the complaint to the appropriate board staff for handling, or if deemed necessary, the executive director may refer the complaint to another agency.

(2) If the complaint is investigated and the investigation produces evidence of a violation of the laws or rules regarding the practice of pharmacy, the board staff shall determine if the complaint merits the institution of disciplinary action. This decision shall be made in consultation with one board member who shall be a pharmacist, but who shall not be the subject of the complaint; the board member shall be the president of the board, unless such person is unable to serve because he or she does not meet the criteria of this paragraph or for some other valid reason. If the president is unable to serve, the order of succession shall be vice-president, then treasurer. If none of the pharmacist officers are able to serve, then the board president or designee shall designate another pharmacist board member to serve.

(b) If after consultation with the board member described in subsection (a)(2) of this section, the determination is made that the complaint merits the institution of disciplinary action, the following is applicable.

(1) The complaint shall be directed to the assistant attorney general assigned to the board. The Office of the Attorney General should then assign an assistant attorney general to prosecute the complaint in accordance with board rules.

(2) The board's legal counsel shall act as a liaison between the board's staff and the attorney general's office. The board's legal counsel shall ensure that the board's staff provides any information or assistance requested by the attorney general's office.

(3) The board member shall be sent a preliminary notice letter and offered the opportunity to attend an informal conference for the purpose of settling the matter through an informal conference.

(c) If the board member accepts the opportunity to attend an informal conference, the conference participants shall be as follows:

(1) the assistant attorney general assigned to the case, who shall conduct the informal conference;

(2) the board member who is the subject of the complaint and/or his or her legal counsel;

(3) board staff, as necessary or required; and

(4) one board member, who shall be the same person who was initially consulted about the complaint, as described in subsection (a)(2) of this section, provided, however, if that board member is unable to serve for some valid reason, the board member that shall attend the informal conference shall be a pharmacist, but who shall not be the subject of the complaint; the board member designated to attend the informal conference shall be the president of the board, unless such person is unable to serve because he or she does not meet the criteria of this paragraph or for some other valid reason. If the president is unable to serve, the order of succession shall be vice-president, then treasurer. If none of the pharmacist officers are able to serve, then the board president or designee shall designate another pharmacist board member to attend the informal conference.

(d) The case shall proceed to hearing, if the board member who is the subject of the complaint waives his or her right to attend an informal conference, or if after an informal conference is conducted, the case is not dismissed or the board member does not accept the recommendation for settlement.

(e) If the case proceeds to hearing, the following procedures are applicable:

(1) the assistant attorney general assigned to the case shall prosecute the hearing with the hearings officer presiding;

(2) the hearings officer shall then draft an officer's report which discusses the evidence and contains proposed findings of fact and conclusions of law. The hearings officer shall, as authorized by law, recommend a sanction if he or she determines one is necessary; and

(3) at the next scheduled board meeting, after the hearing officer has issued a proposal and all parties have accepted and replied, the following is applicable.

(A) The board, absent the board member who is the subject of the complaint, shall vote to:

(i) accept or reject each proposed finding of fact and conclusion of law; and

(ii) accept or reject the recommended sanction, if applicable.

(B) If the board rejects the recommended sanction, the board shall then vote on the sanction they deem appropriate.

(C) If the board determines that additional evidence is needed, they can vote to remand the case for further hearing, as provided by law.

(f) For the purposes of this section, a board member is defined as any individual who is serving on the board on the date of the receipt of the complaint, or any individual who has previously served on the board, if the complaint is filed within two years from the date the board member's official duties ended.

Notes

22 Tex. Admin. Code § 311.2

The provisions of this §311.2 adopted to be effective October 21, 1992, 17 TexReg 6896.