Sec. 12.020.  ADMINISTRATIVE PENALTIES.  (a)  If a person violates a provision of law described by Subsection (c) or a rule or order adopted by the department under a provision of law described by Subsection (c), the department may assess an administrative penalty against the person as provided by this section.
(b)  The penalty for each violation may be in an amount not to exceed the maximum provided by Subsection (c) of this section.  Each day a violation continues or occurs may be considered a separate violation for purposes of penalty assessments.
(c)  The provisions of law subject to this section and the applicable penalty amounts are as follows:
(d)  In determining the amount of the penalty, the department shall consider:
(1)  the seriousness of the violation, including but not limited to the nature, circumstances, extent, and gravity of the prohibited acts, and the hazard or potential hazard created to the health or safety of the public;
(2)  the damage to property or the environment caused by the violation;
(3)  the history of previous violations;
(4)  the amount necessary to deter future violations;
(5)  efforts to correct the violation;  and
(6)  any other matter that justice may require.
(e)  If, after investigation of a possible violation and the facts surrounding that possible violation, the department determines that a violation has occurred, the department may issue a violation report stating the facts on which the conclusion that a violation occurred is based, recommending that an administrative penalty under this section be imposed on the person charged, and recommending the amount of that proposed penalty.  The department shall base the recommended amount of the proposed penalty on the seriousness of the violation determined by consideration of the factors set forth in Subsection (d) of this section.
(f)  Not later than the 14th day after the date on which the report is issued, the department shall give written notice of the report to the person charged.  The notice shall include a brief summary of the charges, a statement of the amount of the penalty recommended, and a statement of the right of the person charged to a hearing on the occurrence of the violation or the amount of the penalty, or both the occurrence of the violation and the amount of the penalty.
(g)  Not later than the 20th day after the date on which notice is received, the person charged shall accept the determination of the department made under Subsection (e), including the recommended penalty, or make a written request for a hearing on the determination.
(h)  If the person charged with the violation accepts the determination of the department or fails to timely respond to the notice, the commissioner shall issue an order approving the determination and ordering the payment of the recommended penalty.
(i)  If the person charged requests a hearing, the department shall set a hearing and give notice of the hearing.  The hearing shall be conducted under Section 12.032.  The administrative law judge shall make findings of fact and conclusions of law and promptly issue to the commissioner a proposal for decision as to the occurrence of the violation, including a recommendation as to the amount of the proposed penalty if a penalty is warranted.  Based on the findings of fact, conclusions of law, and recommendations of the judge, the commissioner by order may find a violation has occurred and may assess a penalty or may find that no violation has occurred.
(j)  The department shall give notice of the commissioner's order under Subsection (h) or (i) to the person charged.  The notice shall include:
(1)  the findings of fact and conclusions of law separately stated;
(2)  the amount of the penalty ordered, if any;
(3)  a statement of the right of the person charged to judicial review of the commissioner's order, if any; and
(4)  other information required by law.
(j-1)  Not later than the 30th day after the date notice is provided under Subsection (j), a person ordered to pay a penalty under Subsection (h) shall pay the penalty.
(k)  Within the 30-day period immediately following the day on which the order under Subsection (i) becomes final under Section 2001.144, Government Code, the person charged with the penalty shall:
(1)  pay the penalty in full;
(2)  pay the amount of the penalty and file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty; or
(3)  without paying the amount of the penalty, file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty.
(l)  Within the 30-day period, a person who acts under Subsection (k)(3) of this section may:
(1)  stay enforcement of the penalty by:
(A)  paying the amount of the penalty to the court for placement in an escrow account;  or
(B)  giving to the court a supersedeas bond that is approved by the court for the amount of the penalty and that is effective until all judicial review of the commissioner's order is final;  or
(2)  request the court to stay enforcement of the penalty by:
(A)  filing with the court a sworn affidavit of the person stating that the person is financially unable to pay the amount of the penalty and is financially unable to give the supersedeas bond;  and
(B)  giving a copy of the affidavit to the department by certified mail.
(m)  The department on receipt of a copy of an affidavit under Subsection (l)(2) of this section may file with the court, within five days after the date the copy is received, a contest to the affidavit.  The court shall hold a hearing on the facts alleged in the affidavit as soon as practicable and shall stay the enforcement of the penalty on finding that the alleged facts are true.  The person who files an affidavit has the burden of proving that the person is financially unable to pay the amount of the penalty and to give a supersedeas bond.
(n)  If the person does not pay the amount of the penalty and the enforcement of the penalty is not stayed, the department may refer the matter to the attorney general for collection of the amount of the penalty.
(o)  Judicial review of the order of the commissioner under Subsection (i):
(1)  is instituted by filing a petition as provided by Subchapter G, Chapter 2001, Government Code; and
(2)  is under the substantial evidence rule.
(p)  If the court sustains the occurrence of the violation, the court may uphold or reduce the amount of the penalty and order the person to pay the full or reduced amount of the penalty.  If the court does not sustain the occurrence of the violation, the court shall order that no penalty is owed.
(q)  When the judgment of the court becomes final, the court shall proceed under this subsection.  If the person paid the amount of the penalty and if that amount is reduced or is not upheld by the court, the court shall order that the appropriate amount plus accrued interest be remitted to the person.  The rate of the interest is the rate charged on loans to depository institutions by the New York Federal Reserve Bank, and the interest shall be paid for the period beginning on the date the penalty was paid and ending on the date the penalty is remitted.  If the person gave a supersedeas bond and if the amount of the penalty is not upheld by the court, the court shall order the release of the bond.  If the person gave a supersedeas bond and if the amount of the penalty is reduced, the court shall order the release of the bond after the person pays the amount.
(r)  A penalty collected under this section shall be deposited in the state treasury to the credit of the General Revenue Fund.
(s)  All proceedings under this section are subject to Chapter 2001, Government Code, except as provided in Subsections (t) and (u).
(t)  Notwithstanding Section 2001.058, Government Code, the commissioner may change a finding of fact or conclusion of law made by the administrative law judge if the commissioner:
(1)  determines that the administrative law judge:
(A)  did not properly apply or interpret applicable law, department rules or policies, or prior administrative decisions;  or
(B)  issued a finding of fact that is not supported by a preponderence  of the evidence;  or
(2)  determines that a department policy or a prior administrative decision on which the administrative law judge relied is incorrect or should be changed.
(u)  The commissioner shall state in writing the specific reason and legal basis for a determination under Subsection (t).
Added by Acts 1983, 68th Leg., p. 5382, ch. 990, Sec. 1, eff. Sept. 1, 1983.  Amended by Acts 1989, 71st Leg., ch. 230, Sec. 10, eff. Sept. 1, 1989;  Acts 1995, 74th Leg., ch. 76, Sec. 5.95(49), (52), (53), eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 358, Sec. 2, eff. June 8, 1995;  Acts 1995, 74th Leg., ch. 419, Sec. 3.02, eff. Sept. 1, 1995; Acts 1995, 74th Leg., ch. 425, Sec. 2, eff. Sept. 1, 1995;  Acts 1999, 76th Leg., ch. 186, Sec. 1, eff. Sept. 1, 1999; Acts 2001, 77th Leg., ch. 374, Sec. 1, eff. May 25, 2001;  Acts 2001, 77th Leg., ch. 1124, Sec. 2, eff. Sept. 1, 2001.
Amended by: 
Acts 2007, 80th Leg., R.S., Ch. 963 (H.B. 4062), Sec. 2, eff. June 15, 2007.
Acts 2009, 81st Leg., R.S., Ch. 506 (S.B. 1016), Sec. 6.01, eff. September 1, 2009.
Acts 2011, 82nd Leg., R.S., Ch. 97 (S.B. 893), Sec. 1, eff. September 1, 2011.
Acts 2011, 82nd Leg., R.S., Ch. 567 (H.B. 3199), Sec. 2, eff. June 17, 2011.
Acts 2013, 83rd Leg., R.S., Ch. 924 (H.B. 1494), Sec. 1.01, eff. September 1, 2013.
Acts 2017, 85th Leg., R.S., Ch. 896 (H.B. 3227), Sec. 1, eff. June 15, 2017.
Acts 2019, 86th Leg., R.S., Ch. 764 (H.B. 1325), Sec. 1, eff. June 10, 2019.
Acts 2019, 86th Leg., R.S., Ch. 1219 (S.B. 2119), Sec. 4, eff. September 1, 2020.