1. (a) Proposals for decision.

   1. (1) Elements. In addition to any other requirement of the Act or the Administrative Procedure Act, the administrative law judge shall serve on the parties a proposal for decision which shall contain:

      1. (A) a summary of the evidence adduced by each party;
      2. (B) a statement of the hearings examiner's or administrative law judge's reasons for the proposed decision;
      3. (C) findings of fact expressed in clear, concise factual terms, neither summarizing nor reciting the evidence. Findings of fact must be based explicitly on the evidence and on matters officially noticed;
      4. (D) conclusions of law necessary to the proposed decision;
      5. (E) a listing and explanation of all mitigating and aggravating circumstances necessary to a complete understanding of the case by the board; and
      6. (F) recommended disposition or discipline.
   2. (2) Service. When a proposal for decision is prepared, a copy of the proposal shall be served forthwith by the administrative law judge on each party, his or her attorney of record or representative, and the board. Service of the proposal for decision shall be in accordance with §183.9(f) and (k) of this title (relating to Procedure--General).
   3. (3) Statutory statement. If findings of fact are stated in statutory language, each finding must be accompanied by a concise and explicit statement of the facts supporting the finding.
   4. (4) Proposed findings. Only when the hearings examiner or administrative law judge requests a party or parties to submit findings of fact will it be necessary for the administrative law judge to rule on each proposed finding in the recommended order.

2. (b) Exceptions and replies.

   1. (1) Entitlement. Any party of record who is aggrieved by the administrative law judge's proposal for decision shall have the opportunity to file exceptions to the proposal for decision within 20 days from the date of service of the proposal for decision. Replies to the exceptions may be filed by other parties within ten days of the filing of the exceptions. Exceptions and replies shall be filed with the administrative law judge. Any extensions of time shall be as provided by §183.9(c) of this title (relating to Procedure--General).
   2. (2) Form. The form of exceptions and replies are as specified in §183.9(f) of this title (relating to Procedure--General).
   3. (3) Content. Each exception or reply to a finding of fact shall be stated concisely and shall summarize the evidence in support thereof. Arguments shall be logical and citations to authorities shall be complete.
   4. (4) Briefs. Briefs shall be filed only when requested or permitted by the acupuncture board, presiding officer, or administrative law judge.
   5. (5) Service. Exceptions and replies shall be served upon every party of record by the filing party pursuant to §183.9(k) of this title (relating to Procedure--General).
3. (c) Oral argument. Any party may request oral argument prior to the final determination of any proceeding, but oral argument shall be allowed only in the sound discretion of the board. A request for oral argument may be incorporated in exceptions, briefs, replies to exceptions, motions for rehearing, or in separate pleadings.

4. (d) Final decisions and orders.

   1. (1) Board action. The proposal for decision may be acted on by the board upon the expiration of ten days after the filing of replies to exceptions to the proposal for decision. Parties shall be notified either personally or by mail of any decision or order. On written request, a copy of the decision or order shall be delivered or mailed to any party and to his or her attorney of record.
   2. (2) Recorded. All final decisions and orders of the board shall be in writing or stated in the record and shall be signed by the presiding officer of the board. A final order shall include findings of fact and conclusions of law, separately stated.
   3. (3) Imminent peril. If the board finds that an imminent peril to the public health, safety, or welfare requires immediate effect of a final decision or order in a contested case, it shall recite the finding in the decision or order as well as the fact that the decision or order is final and effective on the date rendered, in which event the decision or order is final and appealable on the date rendered and no motion for rehearing is required as a prerequisite for appeal.

   4. (4) Changes to recommendation. To protect the public interest and ensure that sound principles govern the decisions of the acupuncture board, it shall hereafter be the policy of the acupuncture board to change a finding of fact or conclusion of law or to vacate or modify the proposed order of an administrative law judge when the proposed order is:

      1. (A) erroneous;
      2. (B) against the weight of the evidence;
      3. (C) based on unsound medical principles;
      4. (D) based on an insufficient review of the evidence;
      5. (E) not sufficient to protect the public interest; or
      6. (F) not sufficient to adequately allow rehabilitation of the acupuncturist.
   5. (5) Amended order. If the acupuncture board modifies, amends, or changes the administrative law judge's recommended order, an order shall be prepared reflecting the acupuncture board's changes as stated in the record.

   6. (6) Administrative finality. A final order or acupuncture board decision is administratively final:

      1. (A) upon a finding of imminent peril to the public health, safety, or welfare, as outlined in paragraph (3) of this subsection;
      2. (B) when absent the filing of a timely motion for rehearing upon the expiration of 20 days from the date the final order or acupuncture board decision is entered; or
      3. (C) when a timely motion for rehearing is filed and the motion for rehearing is overruled by board order or operation of law as outlined in subsection (e) of this section.
   7. (7) Rendering of final decision or order. The final decision or order must be rendered within 60 days after the date the hearing is finally closed. In a contested case heard by an administrative law judge, an extension of time for the issuing of a proposal for decision may be announced at the conclusion of the hearing.

5. (e) Motions for rehearing.

   1. (1) Filing times. A motion for rehearing must be filed within 20 days after a party has been notified, either in person or by mail, of the final decision or order of the acupuncture board.
   2. (2) Board action. Action by the acupuncture board on the motion must be taken within 45 days after the date of rendition of the final decision or order. If board action is not taken within the 45-day period, the motion for rehearing is overruled by operation of law 45 days after the date of rendition of the final decision or order. The acupuncture board may, by written order, extend the period of time for filing the motions and replies and taking board action, except that an extension may not extend the period for board action beyond 90 days after the date of rendition of the final decision or order. In the event of an extension, the motion for rehearing is overruled by operation of law on the date fixed by the order, or in the absence of a fixed date, 90 days after the date of the final decision or order. The parties may, by agreement, with the approval of the acupuncture board, provide for a modification of the times provided in this section.

6. (f) The record. The record in a contested case shall include:

   1. (1) all pleadings, motions, and intermediate rulings;
   2. (2) evidence received or considered;
   3. (3) a statement of matters officially noticed;
   4. (4) questions and offers of proof, objections, and rulings on them;
   5. (5) proposed findings of fact, conclusions of law, exceptions, and replies;
   6. (6) any decision, opinion, or report by the officer presiding at the hearing; and
   7. (7) all staff memoranda, correspondence from parties, or other data submitted to or considered by the administrative law judge or members of the agency who are involved in making the decision.
7. (g) Costs of appeal. A party appealing a final decision of the acupuncture board in a contested case may be ordered by the acupuncture board to pay all or a part of the cost of preparation of the original or a certified copy of the record of the proceeding that is required to be transmitted to the reviewing court.

Source Note:The provisions of this §183.12 adopted to be effective May 16, 1994, 19 TexReg 3366.