- What is the Texas Real Estate Commission?
- Who does TREC regulate?
- How does a typical investigation proceed at TREC?
- How long does this process usually last?
- Can TREC revoke my license?
- What is an Agreed Order and should I sign it?
- Do I really need an attorney?
- While I consider my options, should I call TREC and explain myself?
- Should I call TREC to ask questions about what happens next?
- What happens if I don’t respond at all to TREC’s Complaint Letter or Notice?
- How can an attorney help me?
What is the Texas Real Estate Commission?
The Texas Real Estate Commission (TREC) is a state-level administrative agency. Its mission is to oversee and otherwise regulate real estate services in the state of Texas. It is empowered by the state government of Texas to accomplish this task through education, licensure and investigation.
Who does TREC regulate?
The Texas Real Estate Commission regulates real estate brokers and salespersons, real estate inspectors, education providers for real estate and inspection courses, residential service companies, timeshare developers, and easement or right-of-way (ERW) agents.
How does a typical investigation proceed at TREC?
Typically, TREC receives a complaint from a member of the public such as a tenant, prospective buyer or seller, or an agent. Many of these complaints relate to purchasing or renting of a home, misleading advertising or unlicensed activity. The Texas Real Estate Commission then typically notifies the person against whom the complaint was filed and completes an investigation. After investigation, TREC will decide whether the evidence suggests a violation has occurred. If it believes a violation has occurred, TREC will typically attempt to resolve the complaint through an Agreed Order or other dispute resolution technique. If a resolution cannot be reached, formal charges may be filed.
How long does this process usually last?
Every case is different, but the investigation alone may last many months. The process can be taxing on both your business and personal life.
Can TREC revoke my license?
Yes. The Texas Real Estate Commission has the power to place sanctions upon your license, require you to undergo remedial training and education, or revoke a license entirely. You have the right to a fair process before any of these things can happen, however. You have the right to have the assistance of an experienced attorney to defend your license on your behalf in any investigation or enforcement action, as well.
What is an Agreed Order and should I sign it?
After investigating, TREC will often send the license-holder a letter called a proposed “Agreed Order.” This order will contain terms and conditions to be imposed upon your license if you agree by signing the document. Signing an Agreed Order essentially admits the truth of all the “statements of fact” and “conclusions of law” within it. It is appropriate to think of it as akin to a “plea bargain.”
Every case is different and without knowledge of the specific facts surrounding yours it is impossible to advise you to sign or not to sign. You should note that if you sign the order, it will be part of your license record. This mark on your record can have adverse employment effects either now or in the future.
Do I really need an attorney?
Absolutely. For assistance in defending your license, do not seek help from the investigator or any other commission personnel. Our recommendation is to seek the advice of an experienced and dedicated license defense attorney as soon as possible. Do not respond to TREC on your own. The Texas Real Estate Commission has experienced staff attorneys who are very knowledgeable about the law. With that said, you will also need a defense attorney with experience.
While I consider my options, should I call TREC and explain myself?
No. Until you are ready to respond in full to the complaint notice or letter of investigation, you should not directly respond to the Texas Real Estate Commission at all. Responses made to TREC before you hire an experienced attorney may still be held against you as admissions of guilt. These initial responses, often made out of fear and confusion, can significantly harm you and your license. Based on our experience with these matters, the most prudent action is to have the complaint or letter of investigation reviewed by an attorney. The attorney can then assist you in making a response that fully conveys your side of the events and gives the Board no unfair advantage over you.
Should I call TREC to ask questions about what happens next?
No. Oftentimes, license-holders will call the investigator or Commission to ask questions about what to do next. However, their urge to express to TREC their innocence often leads them to make responsive statements in connection with their questions. Once again, these statements may be construed as admissions and could severely damage your case.
What happens if I don’t respond at all to TREC’s Complaint Letter or Notice?
Failure to respond to a Texas Real Estate Commission complaint or investigation may result in adverse action against your real estate license. In many cases, ignoring the investigation permits TREC to act against you. Ignoring the issue does not make it go away. In many cases, not responding is treated as essentially admitting guilt.
How can an attorney help me?
While the strategy that your license defense attorney will implement depends on the nature of the case, attorneys have several options for contesting the Commission’s claims. At the investigation stage, it is important to communicate to your attorney exactly what happened and disclose any witnesses that can corroborate your story. Your attorney can then speak with the investigator on the case in order to uncover the specific basis for TREC’s allegations. This may involve reviewing documentation or witness statements that TREC claims substantiate its allegations in the complaint. After gathering this information, your attorney will be better able to assess the merits of your case and determine the best course of action as to how to argue your case before the Commission. This can be helpful in preparing for an informal settlement conference and hopefully settling the matter at that stage. While the investigation stage appears informal, it can be one of the most important stages for the attorney to defend you. This is the point that the TREC is assessing if and to what extent it should seek further disciplinary proceedings.
If the matter proceeds beyond the investigation stage to the State Office of Administrative Hearings (SOAH), an attorney can navigate the procedures and requirements of formal legal proceedings. While SOAH is an administrative court, the procedure is still quite formal and involves specific adherence to the SOAH rules of procedure as well as special procedural rules specific to the cases. This is another reason an attorney with experience in TREC cases can be especially helpful. Attorneys who are unfamiliar with these cases can often make mistakes that could result in missing important deadlines and possibly prejudicing your case. For instance, many attorneys that are unfamiliar with the SOAH rules may not realize that discovery requests in SOAH proceedings are due in twenty days instead of thirty as required in Texas district courts. There can be very harsh penalties for missing this deadline. For instance, TREC can seek a court order stating that you have admitted all the requests that were unanswered. While this is just one example, the SOAH rules are full of similar pitfalls. While the staff attorney for TREC may be lenient and understanding, that is not something you want to count on. At the SOAH stage, several discovery tools are available to your attorney under Texas law. These tools generally include five components:
Request for Disclosure: These requests seek basic information regarding the other party’s legal and factual basis for the case, as well as contact information for any witnesses or experts that party plans to utilize in the matter.
Request for Production: These requests require the other party to provide documents and other evidence that the other party possesses that are relevant to the case. Production requests can be quite broad and request documents, photographs records, bank statements, logs, emails and other tangible evidence.
Request for Admissions: These requests require the other party to either “admit or deny” a statement.
Written Interrogatories: These requests are written questions that require an open answer. These can be especially helpful in requiring detailed responses on pivotal points of the case.
Depositions: Oral questions that are asked and answered under oath in front of a court reporter or stenographer.
Once the attorney has propounded sufficient discovery to have a strong grasp of the case, the attorney can seek to settle the matter either through informal negotiations with the TREC’s staff attorney or by setting up a mediation or other alternative dispute resolution. The prospects of a settlement are based primarily on the strength of the TREC’s case and legal arguments that can be made against it. If TREC is confident in its case, negotiating a settlement can be difficult with the knowledge and expertise necessary to understand what TREC is seeking and how these matters are generally dealt with.
If settlement with TREC is not feasible, the attorney can begin to prepare for trial before an Administrative Law Judge at SOAH. This process can be extremely difficult for the inexperienced as the Texas Rules of Evidence are quite strict. While SOAH proceedings involve a relaxed evidentiary standard, the staff attorney will seek to have the license-holder’s evidence thrown out because it will make TREC’s stance much stronger if there is no controverting evidence. An attorney experienced in licensure defense is best prepared to fight these motions and provide the best case going into trial.
At the final trial, your attorney can represent you in questioning witnesses and making your arguments before the Administrative Law Judge. After the Administrative Law Judge issues its order and findings of fact, TREC will consider the record to determine an appropriate order against the license-holder. This decision can be appealed to a Texas district court and your attorney can further represent you if necessary.
