Texas Occupations Code 164.007 – Administrative Hearings; Confidentiality Issues
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(a) The board by rule shall adopt procedures governing formal disposition of a contested case under Chapter 2001, Government Code. A formal hearing shall be conducted by an administrative law judge employed by the State Office of Administrative Hearings. After receiving the administrative law judge’s findings of fact and conclusions of law, the board shall:
(1) dispose of the contested case by issuing a final order based on the administrative law judge’s findings of fact and conclusions of law; or
(2) appeal the administrative law judge’s findings of fact and conclusions of law in the manner provided by § 164.0072.
(a-1) Notwithstanding § 2001.058(e), Government Code, the board may not change a finding of fact or conclusion of law or vacate or modify an order of the administrative law judge. For each case, the board has the sole authority and discretion to determine the appropriate action or sanction. The administrative law judge may not make any recommendation regarding the appropriate action or sanction.
Terms Used In Texas Occupations Code 164.007
- Appeal: A request made after a trial, asking another court (usually the court of appeals) to decide whether the trial was conducted properly. To make such a request is "to appeal" or "to take an appeal." One who appeals is called the appellant.
- Board: means the Texas Medical Board. See Texas Occupations Code 151.002
- Complaint: A written statement by the plaintiff stating the wrongs allegedly committed by the defendant.
- Discovery: Lawyers' examination, before trial, of facts and documents in possession of the opponents to help the lawyers prepare for trial.
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- License holder: means a person holding a license, permit, or certificate issued under this subtitle. See Texas Occupations Code 151.002
- Physician: means a person licensed to practice medicine in this state. See Texas Occupations Code 151.002
- Precedent: A court decision in an earlier case with facts and law similar to a dispute currently before a court. Precedent will ordinarily govern the decision of a later similar case, unless a party can show that it was wrongly decided or that it differed in some significant way.
- Prosecute: To charge someone with a crime. A prosecutor tries a criminal case on behalf of the government.
- Rule: includes regulation. See Texas Government Code 311.005
- Statute: A law passed by a legislature.
- Subpoena: A command to a witness to appear and give testimony.
- Written: includes any representation of words, letters, symbols, or figures. See Texas Government Code 311.005
(b) Notwithstanding this subtitle or other law, the board may employ, retain, and compensate:
(1) attorneys, consultants, and other professionals as necessary and appropriate to serve as board consultants or special counsel to prosecute complaints filed with the board on behalf of the hearings division and investigating division; and
(2) court reporters and other staff necessary to prepare for or represent the board in the hearings authorized by this section.
(c) Each complaint, adverse report, investigation file, other investigation report, and other investigative information in the possession of or received or gathered by the board or its employees or agents relating to a license holder, an application for license, or a criminal investigation or proceeding is privileged and confidential and is not subject to discovery, subpoena, or other means of legal compulsion for release to anyone other than the board or its employees or agents involved in discipline of a license holder. For purposes of this subsection, investigative information includes information relating to the identity of, and a report made by, a physician performing or supervising compliance monitoring for the board.
(d) Not later than the 30th day after the date of receipt of a written request from a license holder who is the subject of a formal complaint initiated and filed under § 164.005 or from the license holder’s counsel of record, and subject to any other privilege or restriction set forth by rule, statute, or legal precedent, and unless good cause is shown for delay, the board shall provide the license holder with access to all information in its possession that the board intends to offer into evidence in presenting its case in chief at the contested hearing on the complaint. The board is not required to provide:
(1) a board investigative report or memorandum;
(2) the identity of a nontestifying complainant; or
(3) attorney-client communications, attorney work product, or other materials covered by a privilege recognized by the Texas Rules of Civil Procedure or the Texas Rules of Evidence.
(e) Furnishing information under Subsection (d) does not constitute a waiver of privilege or confidentiality under this subtitle or other applicable law.
(f) Investigative information in the possession of the board or an employee or agent relating to discipline of a license holder may be disclosed to:
(1) the appropriate licensing authority of:
(A) another state; or
(B) a territory or country in which the license holder is licensed or has applied for a license; or
(2) a medical peer review committee reviewing an application for privileges or the qualifications of the license holder with respect to retaining privileges.
(g) If investigative information in the possession of the board or its employees or agents indicates that a crime may have been committed, the board shall report the information to the appropriate law enforcement agency.
(h) The board shall cooperate with and assist a law enforcement agency conducting a criminal investigation of a license holder by providing information that is relevant to the criminal investigation to the investigating agency. Information disclosed by the board to an investigative agency remains confidential and may not be disclosed by the investigating agency except as necessary to further the investigation.