You have worked hard to earn your license as an offender education instructor and/or program provider in Texas. However, a complaint against you could threaten the career that you have worked so hard to build. You have too much at stake to try and handle a complaint and potential disciplinary action on your own. Instead, call an experienced offender education programs license defense lawyer to protect your rights, your license, and your reputation. By getting legal representation, you can also better understand the types of sanctions you may face in disciplinary proceedings before the Texas Department of Licensing and Regulation (TDLR).
Changes to Offender Education Program Licensing
Effective October 23, 2022, TDLR changed the Offender Education Programs licensing process. One major change involved changing the name from “Offender Education Programs” to “Court-Ordered Programs.” The name change and changes to fees and endorsements resulted from the passage of Senate Bill 1480 and the adoption of new rules about Court-Ordered Programs.
Scope of Court-Ordered Program Licensing
Under Tex. Govt. Code §171.0103, a license for a court-ordered program provider must be endorsed with one or more of the following classifications:
- the alcohol educational program for minors;
- the drug offense educational program;
- the educational program for intoxication offenses; or
- the intervention program for intoxication offenses.
Instructor licenses must also contain at least one of the endorsement classifications listed above under Tex. Govt. Code §171.0153.
Grounds for Disciplinary Action Against Court-Ordered Program Providers or Instructors
Tex. Govt. Code §171.0352 provides that TDLR may take disciplinary action against a court-ordered program license holder by issuing a reprimand, suspending a license, placing an individual on probation, or revoking a license under certain circumstances. Grounds for disciplinary action under this section include:
- violating any provisions in this code section, any rules adopted by TDLR according to this code section, or orders of TDLR;
- permitting or engaging in misrepresentation, fraud, or deceit regarding a court-ordered program provided or instructed by the license holder;
- engaging in conduct that harms, endangers, or is likely to harm or endanger the health, welfare, or safety of a participant or the public as defined by commission rule;
- violating the code of ethics adopted and published by TDLR; or
- violating a standard of practice or conduct as adopted by TDLR rule.
Complaints Concerning Court-Ordered Program Providers and Instructors
TDLR’s Enforcement Division receives and investigates all complaints against the providers and instructors of court-ordered program providers. The complaint, investigation, and disciplinary process follows the standard TDLR procedures for all other occupations it licenses and regulates.
When TDLR Receives a Complaint
After TDLR staff members receive a complaint, their first inquiry concerns whether the agency has jurisdiction over the license holder and whether sufficient evidence exists to believe that the license holder has violated a law or rule. If TDLR has both jurisdiction and sufficient evidence to believe that a violation has occurred, it opens an investigation.
Performing an Investigation
Under Tex. Govt. Code §171.0355, program providers, instructors, or any other persons associated with court-ordered programs must:
- cooperate with TDLR during an investigation of a complaint under this chapter; and
- provide or make available to TDLR on request any documents or records related to the investigation, including all instructor records, unless otherwise prohibited by law.
Additionally, TDLR can enlist the Department of Public Safety for investigative assistance if needed.
Upon initiating an investigation, TDLR typically notifies the license holder of the complaint unless doing so would jeopardize its investigation. An investigation usually involves interviewing the complainant, the license holder, and anyone affiliated with the license holder who might have information about the complaint. The investigator also may review relevant documentary evidence. After completing the investigation, the investigator submits an investigative report to a prosecuting attorney at TDLR.
Disposition of Complaints
If the TDLR prosecuting attorney finds insufficient evidence or another reason that moving forward with enforcement action is inappropriate, then they may close the complaint and notify the parties. The attorney also may send a warning letter to the license holder about potential violations that led to the complaint and then close the case.
On the other hand, if the TDLR prosecutor finds sufficient evidence that a license holder has violated a law or rule that applies to court-ordered programs, TDLR may bring formal disciplinary action against the license holder. TDLR initiates these proceedings by issuing a Notice of Alleged Violation (NOAV) to the license holder. The NOAV lists the alleged violations and the potential sanctions if TDLR finds that the license holder committed the violations as alleged.
Responding to the NOAV
A license holder has 20 days from receiving the NOAV to respond to TDLR, either by:
- Asking for a hearing before an administrative law judge (ALJ); or
- Signing an Agreed Order or settlement offer from TDLR.
Failure to exercise either of these options can result in TDLR issuing an Order of Default against the license holder. An Order of Default means that TDLR issues a written finding that the license holder committed the violation(s) and imposes sanctions, which can include administrative penalties and actions that affect their license. The license holder has no recourse to ask for a hearing or an Agreed Order at that point.
A NOAV often will contain an Agreed Order or settlement offer from TDLR. If that is the case, and the license holder agrees with the findings and proposed sanctions in the Agreed Order, then the license holder may sign and return the Agreed Order to TDLR. The Agreed Order contains a finding of a violation and certain conditions the license holder must complete to comply with TDLR and not face further disciplinary action. An Agreed Order is not mandatory.
Alternatively, the license holder can ask for an administrative hearing. A timely request for a hearing will result in TDLR transferring the case to the State Office of Administrative Hearings (SOAH).
Administrative Hearings at the State Office of Administrative Hearings
When SOAH receives a disciplinary case from TDLR, it assigns it to an administrative law judge (ALJ). The ALJ processes the case much as a judge does in civil court, although special SOAH rules apply to cases being heard by an ALJ at SOAH. Ultimately, the ALJ schedules the case for a hearing at which both parties can present evidence about whether the license holder violated a rule or law and, if so, what sanctions are appropriate.
After hearing all evidence from both sides, the ALJ prepares a proposal for decision (PFD), which is the ALJ’s findings of fact and conclusions of law. The PFD also contains any sanctions that the ALJ recommends for any violations.
The Commission of Licensing and Regulation of TDLR considers the PFD at a meeting. The parties may attend the meeting and make final arguments to the Commission about the disposition of the case. The Commission then issues a final order concerning the case, in which it may adopt, amend, or reject the ALJ’s PFD.
Sanctions for Disciplinary Action Against Court-Ordered Program Providers and Instructors
TDLR utilizes a general enforcement plan for all occupations it licenses and regulates. As part of that general enforcement plan, TDLR provides a section that lists the full range of sanctions for specific violations individualized to each occupation. Currently, TDLR has no published sanctions based on violations of the rules and laws that pertain to court-ordered program providers and instructors. However, TDLR’s Enforcement Division is currently developing an individualized enforcement plan for the Court-Ordered Programs industry.
Count on Bertolino, LLP, to Defend Your Court-Ordered Programs License from Disciplinary Action
When a complaint threatens your ability to earn a living, you need a seasoned court-ordered programs license defense attorney. We will defend you against these attacks on the credentials you have worked so hard to earn. Get in touch with the lawyers of Bertolino LLP today by calling (512) 515-9518 or visiting us online.
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