1. (a) An investigative file accounting for each complaint filed with the Board shall be maintained under the supervision of the Director of Enforcement.
2. (b) Every complaint shall be reviewed by the Director of Enforcement to determine jurisdiction. If jurisdiction exists, a complaint shall be investigated to determine the facts concerning the complaint. All investigators shall be state employees.
3. (c) If, upon initial review, the complaint reveals a possible threat to a person's welfare, the complaint shall be referred to the Board or an executive committee of the Board, for consideration of temporary suspension, pursuant to the Occupations Code, Chapter 263, Section 263.004.
4. (d) During the course of an investigation, the complainant shall be given an opportunity to explain or comment on the allegations made in the complaint. At the initiation of the investigation, the respondent shall be provided a copy of the complaint to facilitate a response, unless to do so would jeopardize an undercover investigation.
5. (e) The parties to the complaint shall receive notice of the status of the complaint, at least quarterly, until final disposition of the complaint, unless such notice would jeopardize an undercover investigation.
6. (f) Upon completion of an investigation by the Enforcement staff, the Board Secretary or designee shall review the investigative file. The Secretary, or designee may: dismiss the case; refer the case to the State Office of Administrative Hearing; refer the case to an informal settlement conference for the proposal of an agreed settlement order imposing sanction(s); direct further investigation, or other appropriate action or consideration in accordance with Board rules, or refer it to the Professional Evaluation Committee.
7. (g) If the Board Secretary or designee dismisses a case, he or she shall state, with specificity, the reason or reasons for the dismissal. A case dismissed by the Board Secretary or designee shall be reviewed by at least two members of the Enforcement Committee. If one reviewing member of the Enforcement Committee does not agree with the Board Secretary or designee's decision to dismiss the case, that case shall be forwarded to the Professional Evaluation Committee for consideration. If both reviewing members of the Enforcement Committee agree with the Board Secretary or designee's decision to dismiss the case, the dismissal shall be final.
8. (h) All jurisdictional cases shall be investigated. No case will be dismissed without appropriate consideration. If a complaint is dismissed, the Board shall notify the complainant within ten days of the date of the Board action. The notice of dismissal must be in writing, include the reason(s) for the dismissal and inform the complainant of the right to appeal the dismissal. An appeal under this section shall be considered a request for reconsideration of the dismissed case.

9. (i) The Board may hear an appeal in a dismissed case only if:

   1. (1) New information or evidence is presented, the acceptance of such, if taken as true supports the original complaint(s);
   2. (2) The complainant must, in writing, request reconsideration of a dismissed case postmarked no later than twenty days from the date of receipt of the Board's dismissal letter. The complainant(s) is presumed to be in receipt of the dismissal letter on the third day after the date on which the dismissal letter is mailed.
   3. (3) A request for reconsideration of a dismissed case(s) shall not be considered by the Board unless it is timely submitted.
   4. (4) A request for reconsideration must contain the requirements specified in this subsection. For purposes of this section, a complainant is deemed to have received the dismissal letter three days from the date of mailing by the Board.
   5. (5) Requests meeting this subsection shall be heard by the Professional Evaluation Committee no later than sixty days after the date the Board receives the request from the complainant requesting reconsideration. This time frame may be extended upon good cause shown by the Board. If the time for reconsideration occurs after this sixty day period, the Board shall notify the complainant(s) in writing.
   6. (6) This subsection does not apply to cases dismissed by the full Board by recommendation from an Informal Settlement Conference panel. All cases dismissed by the full Board may be appealed in accordance with the Government Code.

10. (j) The Professional Evaluation Committee shall consist of three board members appointed by the President of the Board, one of whom must be a public member. Complaints referred to the Professional Evaluation Committee by the Secretary or designee may be dismissed, referred to an informal settlement conference or returned for further investigation. The Professional Evaluation Committee may also propose an agreed Board Order imposing sanctions. All Board Orders proposed by the Professional Evaluation Committee shall include a statement that the Respondent should not agree to the Order if he or she wants to explain any part of his or her conduct in connection with the complaint.

    1. (1) Meetings of the Professional Evaluation Committee are open meetings as defined by the Open Meetings Act;
    2. (2) Only Professional Evaluation Committee members and SBDE staff may participate in discussions concerning any complaint. The members may review and consider all information in the investigative file.
    3. (3) All cases heard by the Professional Evaluation Committee involving reconsideration of an earlier dismissal by the Board are final.

Source Note:The provisions of this §107.102 adopted to be effective April 19, 1996, 21 TexReg 3182; amended to be effective August 11, 1997, 22 TexReg 7036; amended to be effective February 11, 1999, 24 TexReg 692; amended to be effective November 30, 1999, 24 TexReg 10549; amended to be effective December 3, 2000, 25 TexReg 11938; amended to be effective February 11, 2003, 28 TexReg 1178.