All occupations and professionals that require some license or certification through the state of Texas are subject to licensing board rules and laws that govern them. Any violations of those rules or laws can lead to investigations and disciplinary action against your license by the relevant licensing board or agency. Once your licensing board has issued a decision in your disciplinary proceedings, you may face severe consequences. A poor outcome has the potential to ruin your career and your livelihood.
Consult an experienced Texas licensing board defense attorney to understand your legal options following any final action issued by your licensing agency. If you are facing a disciplinary complaint, contacting an attorney from the outset of the process is wise. Throughout the disciplinary proceedings, we can explain your rights and work to protect your license.
When a Licensing Agency Decision Becomes Final
State licensing boards or similar administrative agencies issue most disciplinary decisions. You can appeal these decisions but must follow a different process than if you were appealing a court’s decision. Administrative agency decision-making generally is governed by the Texas Administrative Procedures Act (APA).
You can only appeal an administrative agency’s decision once it becomes final. Under Tex. Gov. Code § 2001.144, an administrative agency decision does not become final until it meets the following criteria:
- if a motion for rehearing is not filed on time, on the expiration of the period for filing a motion for rehearing;
- if a motion for rehearing is timely filed, on the date:
- the order overruling the latest filed motion for rehearing is signed; or
- the latest filed motion for rehearing is overruled by operation of law;
- if a state agency finds that an imminent peril to the public health, safety, or welfare requires immediate effect of a decision or order, on the date the decision or order is signed, provided that the agency incorporates in the decision or order a factual and legal basis establishing an imminent peril to the public health, safety, or welfare, citing this section, and stating that the decision is final and effect on the date signed; or
- the date specified in the decision or order for a case in which all parties agree to the specified date in writing or on the record; or
- if the agreed specified date is before the date the decision or order is signed, the date the decision or order is signed.
Requests for Rehearing
Unless an administrative agency issues a decision due to an imminent peril to the public health, safety, or welfare that requires an immediate decision, or the parties agree in writing to a final decision date, a motion for rehearing is a prerequisite to an appeal. According to Tex. Gov. Code § 2001.146(g), “a motion for rehearing must identify with particularity findings of fact or conclusions of law that are the subject of the complaint and any evidentiary or legal ruling claimed to be erroneous. The motion must also state the legal and factual basis for the claimed error.”
Under Tex. Gov. Code § 2001.146, a party must file a motion for rehearing in a contested case no more than 25 days after the decision or order unless the motion filing time has been extended by agreement or by a written state agency order. The state agency must reply to the motion within 40 days of the date of the decision or order unless the time for the motion has been extended, in which case it must reply within ten days of the date that the motion was filed.
A state agency shall act on the motion for rehearing no more than 55 days after the date of the decision or order that is the subject of the motion is signed. Failure of the state agency to act on the motion for rehearing within that timeframe shall result in the motion being overruled by operation of law.
Filing for Judicial Review
Under Tex. Gov. Code § 2001.171, an individual who has exhausted all administrative remedies within a state agency and wishes to challenge a final agency decision or order further can seek judicial review. As per Tex. Gov. Code § 200.1176, the petition seeking judicial review must be filed within 30 days of the date that the agency decision becomes final and appealable. If a motion for rehearing is a prerequisite for an appeal, a prematurely filed petition for judicial review is effective and considered to be filed after the state agency overrules the motion for rehearing or the date it is deemed overruled.
Individuals must file petitions for judicial review in a district court in Travis County. However, the district court, on its own motion or the motion of any party, may request transfer of the action to the Court of Appeals for the Third Court of Appeals District if the court finds that “the public interest requires a prompt, authoritative determination of the legal issues in the case and the case would ordinarily be appealed.” The Court of Appeals may grant transfer of the case if it agrees with the district court’s findings concerning applying the statutory standards to the action.
The standard of review by the court depends on the manner of review that the law authorizes for a decision in a contested case for that state agency. The law may authorize a trial de novo or review under the substantial evidence rule. If the law is silent on the standard of review, then review occurs under the substantial evidence rule. In this case, the court may not substitute its judgment for the state agency’s judgment on discretionary questions committed to the agency. However, under Tex. Gov. Code § 2001.174, the court may reverse or remand the case for further proceedings if the substantial rights of the party seeking judicial review have been prejudiced because the agency’s findings, conclusions, or decisions are any of the following:
- in violation of a constitutional or statutory provision;
- in excess of the agency’s statutory authority;
- made through unlawful procedure;
- affected by other error of law;
- not reasonably supported by substantial evidence considering the reliable and probative evidence in the record as a whole; or
- arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.
Count on Bertolino LLP to Defend Your License Throughout Your Disciplinary Proceedings
Facing an investigation and potential disciplinary proceedings before your licensing board can be a difficult and stressful experience. An adverse ruling against you by your disciplinary board can threaten your ability to support yourself and continue working in your chosen field. As a result, you may need to take further action on appeal to challenge any adverse agency rulings. Contact an experienced Texas license defense lawyer today by calling the offices of Bertolino LLP at (512) 515-9518 or visiting us online.