1. (a) Presiding officer. When the board en banc, or a committee or panel of the board, conducts a hearing pursuant to the Act, the following apply.

   1. (1) The hearing will be presided over by the presiding officer.

   2. (2) The presiding officer shall have the authority to:

      1. (A) administer oaths;
      2. (B) examine witnesses;
      3. (C) rule on the admissibility of evidence;
      4. (D) rule on motions;
      5. (E) rule on amendments to pleadings;
      6. (F) recess the hearing from day to day; and
      7. (G) refer the hearing to an administrative law judge at the State Office of Administrative Hearings.

2. (b) Administrative law judges/hearings examiners.

   1. (1) Authority. When the board utilizes an administrative law judge or hearings examiner pursuant to the Act, §4.05(a), such hearings shall be conducted in accordance with the Administrative Procedure Act, the Act, the rules of this board, and all other applicable law.

   2. (2) Duties. Except for accepting or rejecting proposed findings of fact or conclusions of law, issuing final orders on the merits, dismissing complaints, and making recommendations as to a licensee's discipline, the administrative law judge or hearings examiner shall have all the authority which the board has regarding the conduct of hearings including, without limitation, the following:

      1. (A) to hold hearings and issue notices;
      2. (B) to administer oaths and affirmations;
      3. (C) to direct all parties to enter their appearance on the record;
      4. (D) to subpoena and examine witnesses;
      5. (E) to subpoena documents and other physical evidence;
      6. (F) to hold conferences, including prehearing conferences, before or during the hearing, to consider the matters specified in §183.10(d) of this title (relating to Procedure--Prehearing);
      7. (G) to regulate the course and conduct of the hearing including, without limitation, setting the time and place of the hearing and/or continued hearings; fixing the time for filing of briefs and other documents; receiving relevant evidence; excluding evidence which is irrelevant, immaterial, repetitious, or cumulative; ruling upon offers of proof; regulating the manner of examination to prevent needless and unreasonable harassment, intimidation, expense, inconvenience, or embarrassment of any witness or party at a hearing; removing disruptive individuals; and ruling on motions;
      8. (H) to submit in writing to the parties a proposal for decision containing the elements specified in §183.12(a) of this title (relating to Procedure--Posthearing);
      9. (I) to present and explain in person his or her proposal for decision to the acupuncture board for its consideration and final action; and
      10. (J) to dispose of any other matter that arises in the course of a hearing and to take any action authorized by the rules of the acupuncture board, the Act, the Administrative Procedure Act, and all other applicable law.

3. (c) Order of proceeding.

   1. (1) Hearings. In all proceedings, the petitioner, applicant, or complainant, respectively, shall be entitled to open and close. Where several proceedings are heard on a consolidated record, the hearings examiner or administrative law judge shall designate who shall open and close. The examiner in all cases shall determine whether and at what stage intervenors shall be permitted to offer evidence. After all parties have completed the presentation of their evidence, the examiner may call upon any party or the acupuncture board staff for further material or relevant evidence upon any issue, to be presented at further public hearing after notice to all parties of record.

   2. (2) Before the acupuncture board. During proceedings before the board, en banc, the order of proceeding shall be the following.

      1. (A) The hearings examiner or administrative law judge shall present his or her proposal for decision and recommended order, explaining them as specified in subsection (b) of this section.
      2. (B) The party adversely affected shall briefly state their reasons for being so affected, supported by the evidence of record.
      3. (C) The other party or parties shall be given the opportunity to respond.
      4. (D) The acupuncture board as complainant shall have the right to close.
      5. (E) The presiding officer or a member of the acupuncture board may question any party as to any matter relevant to the proceeding.
      6. (F) At the end of any argument by the parties, the acupuncture board shall deliberate the matter in executive session and announce its final decision in open meeting.
   3. (3) Limitation. A party shall not inquire into the mental processes used by the acupuncture board in arriving at its decision, nor be disruptive of the orderly procedure of the acupuncture board's routine.

4. (d) Reporter and transcripts.

   1. (1) Option. A party has the option of furnishing his or her own stenographic reporter at his or her own expense or using the reporter on the staff of the board. If a party elects to provide his or her own reporter, the party shall notify the acupuncture board prior to the commencement of the hearing.
   2. (2) Original. The original transcript shall be delivered to the acupuncture board as soon as practicable. A stenographic reporter may sell copies of a transcript. If the respondent in the proceedings requests the original record (statement of fact) of the testimony and evidence of a disciplinary hearing, the costs for the original record (transcript) shall be borne by the respondent (appellant) acupuncturist. Any subsequent copies of the record (transcript) shall be borne by any person requesting same.
   3. (3) Corrections. Suggested corrections to the transcript of the record may be offered within ten days after the transcript is filed in the proceeding, unless the acupuncture board shall permit suggested corrections to be offered thereafter. Suggested corrections shall be served in writing upon each party of record, the official reporter, and the acupuncture board. If suggested corrections are not objected to, the acupuncture board will direct the corrections to be made and the manner of making them. In case the parties disagree on suggested corrections, they may be heard by the acupuncture board which shall then determine the manner in which the record shall be changed, if at all.

5. (e) Dismissal without hearing.

   1. (1) The acupuncture board may entertain motions for dismissal for the following reasons:

      1. (A) failure to prosecute;
      2. (B) unnecessary duplication of proceedings or res judicata;
      3. (C) withdrawal;
      4. (D) moot questions or stale petitions; or
      5. (E) lack of jurisdiction.
   2. (2) Such motions must meet the criteria of §183.10(e) of this title (relating to Procedure--Prehearing).
   3. (3) These motions may be argued prior to the board ruling thereon.

6. (f) Evidence.

   1. (1) Rules. The rules of evidence as applied in nonjury civil cases in the district courts of this state shall be followed. In all cases, irrelevant, immaterial, or unduly repetitious evidence shall be excluded. When necessary to ascertain facts not reasonably susceptible of proof under those rules, evidence not admissible thereunder may be admitted, except where precluded by statute, if it is of a type commonly relied upon by reasonably prudent men in the conduct of their affairs. The acupuncture board shall give effect to the rules of privilege recognized by law. Opportunity must be afforded all parties to respond and present evidence and argument of all issues involved.
   2. (2) Objections. Objections to evidentiary offers shall be made and shall be noted in the record. Formal exceptions to rulings of the hearings examiner or administrative law judge during a hearing shall be unnecessary. It shall be sufficient that the party at the time any ruling is made or sought shall have made known to the hearings examiner or administrative law judge the action which he or she desires.
   3. (3) Offer of proof. If evidence is excluded from the record by an exclusionary ruling of the hearings examiner or administrative law judge, the evidence may be included in the record by an offer of proof by the sponsoring party by dictating into the record or submitting in writing the substance of the evidence. An offer of proof shall be sufficient to preserve the evidence for review.
   4. (4) Acupuncturist's office records. When subpoenaed by the acupuncture board, the office records of each patient shall have stapled thereto an affidavit in the form approved and furnished by the board which contains the requisite elements to comply with the Texas Rules of Evidence, 902 (10)b, concerning the form of affidavits.

   5. (5) Documents. Subject to these requirements, if a hearing will be expedited and the interests of the parties will not be substantially prejudiced, any part of the evidence may be received in written form.

      1. (A) Copies. Documentary evidence may be received in the form of copies or excerpts if the original is not readily available. On request, parties shall be given an opportunity to compare the copy with the original. When numerous documents are offered, the hearings examiner or administrative law judge may limit those admitted to a number which are typical and representative and may, in his or her discretion, require the abstracting of the relevant data from the documents and the presentation of the abstracts in the form of an exhibit; provided, however, that before making such requirement the examiner shall require that all parties of record or their representatives be given the right to examine the documents from which such abstracts were made.
      2. (B) Prepared testimony. In all contested proceedings and after service of copies upon all parties of record at such time as may be designated by the hearings examiner or administrative law judge, the prepared testimony of witness upon direct examination, either in narrative or question and answer form, may be incorporated in the record as if read or received as an exhibit, upon the witness' being sworn and identifying the same. Such witness shall be subject to cross-examination and the prepared testimony shall be subject to a motion to strike in whole or in part.
   6. (6) Official notice. Official notice may be taken of all facts judicially cognizable and of records of the acupuncture board or medical board. In addition, notice may be taken of generally recognized facts within the area of the agency's specialized knowledge. Parties shall be notified either before or during the hearing or by reference in preliminary reports or otherwise, of the material officially noticed, including any staff memoranda or data, and the parties shall be afforded an opportunity to contest the material so noticed. The special skills or knowledge of the acupuncture board and its staff may be utilized in evaluating the evidence.
   7. (7) Limitations on number of witnesses. The hearings examiner or administrative law judge shall have the right in any proceeding to limit the number of witnesses whose testimony is merely cumulative.

   8. (8) Exhibits.

      1. (A) Form. Documentary exhibits shall be eight inches by 11 inches in length, so as to not unduly encumber the files and records of the board. There shall be a brief statement on the first sheet of the exhibit of what the exhibit purports to show. Exhibits shall be limited to fact material and relevant to the issues involved in a particular proceeding.
      2. (B) Marking and service. The original of each exhibit offered shall be marked sequentially for identification and tendered for inclusion in the evidentiary record. One copy shall be furnished to the hearings examiner or administrative law judge and one copy to each party of record or his or her attorney or representative.
   9. (9) After hearing. No exhibit will be permitted to be filed in any proceeding after the conclusion of the hearing unless specifically directed by the hearings examiner, administrative law judge, presiding officer, or by the board with copies of the late-filed exhibit served on all parties of record.

Source Note:The provisions of this §183.11 adopted to be effective May 16, 1994, 19 TexReg 3366.