The board must adopt hearing procedures, follow the administrative law judge’s findings when issuing a final order or appealing, and keep certain investigative information confidential.
Sec. 164.007. ADMINISTRATIVE HEARINGS; CONFIDENTIALITY ISSUES. (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 Section 164.0072. (a-1) Notwithstanding Section 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. (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 Section 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. Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999. Amended by Acts 2001, 77th Leg., ch. 1201, Sec. 2, eff. June 15, 2001. Amended by: Acts 2005, 79th Leg., Ch. 269 (S.B. 419), Sec. 1.40, eff. September 1, 2005. Acts 2011, 82nd Leg., R.S., Ch. 1349 (H.B. 680), Sec. 7, eff. September 1, 2011. Acts 2019, 86th Leg., R.S., Ch. 1231 (H.B. 1504), Sec. 14, eff. September 1, 2019.