(a) The chief executive officer of each postsecondary educational institution shall annually certify in writing to the Coordinating Board, not later than October 31 of each year, that the institution is in substantial compliance with Texas Education Code, Chapter 51, Subchapter E-2. The Coordinating Board shall make available to institutions a required template for the certification which satisfies the requirements of this section.
(b) In addition to annually reviewing the reporting under Texas Education Code §51.258 and §3.19, the Coordinating Board shall conduct risk-based compliance monitoring of Texas Education Code, Chapter 51, Subchapters E-2 and E-3. The Coordinating Board will determine the basis for reviews based on risk factors such as time since last review, stakeholder feedback, prior findings or complaints, and other factors. The Coordinating Board shall make available to the institutions a report template which satisfies the requirements of this section.
(c) If the Coordinating Board determines that a postsecondary educational institution is not in substantial compliance with Texas Education Code, Chapter 51, Subchapters E-2, effective January 1, 2020, or Subchapter E-3, effective August 1, 2020, the Coordinating Board may assess an administrative penalty against the institution in an amount not to exceed $2 million annually. Compliance errors committed by an institution or system that are in substantial compliance with Subchapters E-2 and E-3 will not result in a penalty. The Coordinating Board will not find an institution is out of substantial compliance with the provisions in Subchapter E-2 and Subchapter E-3 based on a determination that the Coordinating Board would have taken different action after an independent evaluation of evidence.
(d) In evaluating whether an institution or system is in substantial compliance in accordance with §3.3 of this title (relating to Definitions), the Coordinating Board will determine the institution's or system's good faith effort by evaluating the following factors:
  (1) The nature and seriousness of the compliance error;
  (2) The extent to which the institution complied with the statutory requirements and to what extent it did not;
  (3) The number of any institutional compliance errors;
  (4) Whether the institution had actual notice of the error;
  (5) Whether the institution made any effort to rectify any compliance errors or agrees to rectify any violations going forward;
  (6) The extent to which the institution has relevant policies and/or practices;
  (7) The institution' s intent;
  (8) Severity of the error' s effect;
  (9) Any previous compliance errors of a similar kind and the time lapse since those error(s);
  (10) Institutional efforts to prevent compliance errors, including the extent to which the institution provided training to employees and/or acted after learning about the error;
  (11) The explanation for the cause of the compliance error, including a good-faith mistake; a differing, reasonable interpretation of the law; a conflict between two provisions, or a conflict with another legal or governmental requirement (such as Title IX regulations or a mandatory report to the National Institutes of Health);
  (12) Any prevention and/or response efforts of the institution, made in good faith, to address a possible compliance error;
  (13) The degree of cooperation of the institution with the Coordinating Board in remedying a potential compliance error; and
  (14) Any other fact or circumstance as justice may require.
(e) A postsecondary educational Institution's failure to timely and accurately file the certification of substantial compliance with Texas Education Code §51.258 and Subsection (a) not later than October 31 of each year shall result in a penalty of $2,000 per day of violation.
  (1) A postsecondary educational institution may cure a violation under this subsection by filing its report not later than November 30 of the year the report was due.
  (2) If the postsecondary educational institution cures the violation as provided in this subsection, the Coordinating Board shall not assess a penalty.
  (3) If the postsecondary educational Institution fails to cure the violation as provided in this subsection, the Coordinating Board shall assess the full penalty owed under this subsection beginning on November 1 of the year the report was due.
  (4) If a postsecondary educational institution files a good faith correction to a previously filed certification of substantial compliance within a reasonable time of discovering an unintentional error, but not later than February 1 following the due date of the report, the Coordinating Board shall not assess a penalty.
(f) The Coordinating Board may assess an administrative penalty, up to a total of $2 million annually, if a postsecondary educational institution has failed to maintain substantial compliance with Texas Education Code, Chapter 51, Subchapters E-2 or E-3.
  (1) In determining the total penalty to assess, the Coordinating Board shall consider the number of students at the institution, the penalty matrix in this section, apply mitigating and aggravating factors, and any other factor justice may require. Mitigating factors may result in a reduction of the administrative penalty. Aggravating factors may result in an increased administrative penalty, up to $2 million annually.
  (2) Penalty Matrix. Potential annual penalty amounts are shown in Figure 1.
Attached Graphic
  (3) Mitigating factors may include:
    (A) The inability of the postsecondary educational institution to meet the requirement of law due to:
      (i) a disaster declared under Texas Government Code, Chapter 418;
      (ii) a technology failure rendering compliance impossible; or
      (iii) a severe medical impairment of a person responsible for compliance with a requirement under Texas Education Code, Chapter 51, Subchapters E-2 or E-3.
    (B) Evidence that the postsecondary educational institution properly reported an incident to another state or federal agency with law enforcement or regulatory authority;
    (C) Any actual notice from the institution of the compliance error;
    (D) Institutional efforts to prevent compliance errors, including the extent to which the institution provided training to employees and/or acted after learning about the error;
    (E) The explanation for the cause of the compliance error, including a good-faith mistake; a differing, reasonable interpretation of the law; a conflict between two provisions, or a conflict with another legal or governmental requirement (such as Title IX regulations or a mandatory report to the National Institutes of Health);
    (F) The lack of harm to any individual; and
    (G) The extent to which the institution or system complied with Texas Education Code, Chapter 51, Subchapters E-2 and E-3.
  (4) Aggravating factors shall include:
    (A) Harm to an individual caused by, or directly related to, the postsecondary educational institution's failure to comply with Chapter 51, Subchapters E-2 and E-3;
    (B) Any evidence of a postsecondary educational institution's failure to act on a prior substantially similar complaint;
    (C) Any evidence of multiple incidents of similar failures or length of time of failure by the postsecondary institution;
    (D) Any evidence that the postsecondary educational institution or its chief executive officer knowingly provided a false certification under Texas Education Code §51.258(a);
    (E) That the postsecondary educational institution attempted to conceal or cause others to conceal information relevant to a determination of violation under Texas Education Code, Chapter 51, Subchapters E-2 and E-3; and
    (F) The extent to which the institution or system failed to comply with Texas Education Code, Chapter 51, Subchapters E-2 and E-3.
(g) If the Coordinating Board assesses an administrative penalty against a postsecondary educational institution under subsection (f) of this section, the Coordinating Board shall provide to the institution written notice of the Coordinating Board's reason for assessing the penalty.
(h) A postsecondary educational institution assessed an administrative penalty under Subsection (f) may appeal the penalty in the manner provided by Chapter 2001, Texas Government Code. The Coordinating Board shall enter a final decision and order as to any penalty assessed after a contested case proceeding.
(i) A postsecondary educational institution may not pay an administrative penalty assessed under Subsection (f) using state-appropriated or federal money.
(j) The Coordinating Board shall deposit an administrative penalty collected under this section to the credit of the sexual assault program fund established under Section 420.008, Texas Government Code.
(k) The Coordinating Board shall annually submit to the governor, the lieutenant governor, the speaker of the house of representatives, and the standing legislature committees with primary jurisdiction over legislation concerning sexual assault at postsecondary educational institutions a report regarding compliance with this subchapter, including a summary of the postsecondary education institutions found not to be in substantial compliance as provided by this section and any penalties assessed under the section during the calendar year preceding the date of the report.

Source Note: The provisions of this §3.19 adopted to be effective January 1, 2020, 45 TexReg 150; amended to be effective May 18, 2023, 48 TexReg 2494