(a) Imposition of penalty. The department may impose an administrative penalty on a person licensed under this chapter who violates the Act, this chapter, or order adopted under this chapter.

(b) Deposit of penalty. A penalty collected under this section shall be deposited in the state treasury in the general revenue fund.

(c) Contested case. A proceeding to impose the penalty is considered to be a contested case under Government Code, Chapter 2001.

(d) Amount of penalty.

(1) The amount of the penalty may not exceed $1,000 for each violation, except for violations of §125.31(b)(6) of this title (pertaining to General Functions), which are limited to $500. Each day a violation continues or occurs is a separate violation for purposes of imposing a penalty. The total amount of the penalty assessed for a violation continuing or occurring on separate days under this paragraph may not exceed $5,000.

(2) In determining the amount of an administrative penalty assessed under this section, the department shall consider: (A) the seriousness of the violation, including the nature, circumstances, extent, and gravity of the violation; (B) the threat to health or safety caused by the violation; (C) the history of previous violations; (D) the amount necessary to deter a future violation; (E) whether the violator demonstrated good faith, including when applicable whether the violator made good faith efforts to correct the violation; and (F) any other matter that justice may require.

(e) Report and notice of violation and penalty.

(1) If the department initially determines that a violation occurred, the department will give written notice of the report by mail to the person alleged to have committed the violation.

(2) The notice must include: (A) a brief summary of the alleged violation; (B) a statement of the amount of the recommended penalty based on the factors listed in subsection (d)(2) of this section; and (C) a statement of the person's right to a hearing on the occurrence of the violation, the amount of the penalty, or both.

(f) Penalty to be paid or hearing requested.

(1) Within 20 days after the date the person receives the notice sent under subsection (e) of this section, the person in writing may: (A) accept the determination and recommended penalty of the department; or (B) make a request for a hearing on the occurrence of the violation, the amount of the penalty, or both.

(2) If the person accepts the determination and recommended penalty or if the person fails to respond to the notice, the commissioner of public health (commissioner) or the commissioner's designee by order shall approve the determination and impose the recommended penalty.

(g) Hearing.

(1) If the person requests a hearing, the commissioner or the commissioner's designee shall refer the matter to the State Office of Administrative Hearings (SOAH).

(2) As mandated by Health and Safety Code, §248.105(a), the SOAH shall promptly set a hearing date and give written notice of the time and place of the hearing to the person. (A) An administrative law judge of the SOAH shall conduct the hearing. (B) The administrative law judge shall make findings of fact and conclusions of law and promptly issue to the commissioner a proposal for a decision about the occurrence of the violation and the amount of a proposed penalty.

(h) Decision by commissioner.

(1) Based on the findings of fact, conclusions of law, and proposal for a decision made by the administrative law judge under subsection (g)(2) of this section, the commissioner or the commissioner's designee by order may find that a violation has occurred and may impose a penalty or may find that no violation has occurred.

(2) The commissioner or the commissioner's designee shall give notice of the commissioner's order under paragraph (1) of this subsection to the person alleged to have committed the violation in accordance with Government Code, Chapter 2001. The notice must include: (A) a statement of the right of the person to judicial review of the order; (B) separate statements of the findings of fact and conclusions of law; and (C) the amount of any penalty assessed.

(i) Options following decision. Within 30 days after the date the order of the commissioner under subsection (h) of this section that imposes an administrative penalty becomes final, the person shall:

(1) pay the penalty; or

(2) appeal the penalty by filing a petition for judicial review of the commissioner's order contesting the occurrence of the violation, the amount of the penalty, or both.

(j) Stay of enforcement of penalty.

(1) Within the 30-day period prescribed by subsection (i) of this section, a person who files a petition for judicial review in accordance with subsection (i)(2) of this section may: (A) stay enforcement of the penalty by: (i) paying the penalty to the court for placement in an escrow account; or (ii) 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 (B) request the court to stay enforcement of the penalty by: (i) filing with the court a sworn affidavit of the person stating that the person is financially unable to pay the penalty and is financially unable to give the supersedeas bond; and (ii) sending a copy of the affidavit to the commissioner by mail.

(2) If the commissioner receives a copy of an affidavit under paragraph (1)(B) of this subsection, the commissioner may file with the court, within five days after the date the copy is received, a contest to the affidavit. In accordance with Health and Safety Code (HSC), §248.108(b), 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 penalty or to give a supersedeas bond.

(k) Collection of penalty.

(1) If the person does not pay 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 penalty.

(2) As provided by HSC, §248.109(b), the attorney general may sue to collect the penalty.

(l) Decision by court. A decision by the court is governed by HSC, §248.110, and provides the following.

(1) If the court sustains the finding that a violation occurred, 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.

(2) If the court does not sustain the finding that a violation occurred, the court shall order that no penalty is owed.

(m) Remittance of penalty and interest and release of supersedeas bond. The remittance of penalty and interest is governed by HSC, §248.111, and provides the following.

(1) If the person paid the penalty and if the amount of the penalty is reduced or the penalty is not upheld by the court, the court shall order, when the court's judgment becomes final, that the appropriate amount plus accrued interest be remitted to the person within 30 days after the date that the judgment of the court becomes final.

(2) The interest accrues at the rate charged on loans to depository institutions by the New York Federal Reserve Bank.

(3) The interest shall be paid for the period beginning on the date the penalty is paid and ending on the date the penalty is remitted.

(n) Release of bond. The release of supersedeas bond is governed by HSC, §248.112, and provides the following.

(1) If the person gave a supersedeas bond and the penalty is not upheld by the court, the court shall order, when the court's judgment becomes final, the release of the bond.

(2) If the person gave a supersedeas bond and the amount of the penalty is reduced, the court shall order the release of the bond after the person pays the reduced amount.

Source Note: The provisions of this §506.73 adopted to be effective July 25, 2004, 29 TexReg 6911; transferred effective June 1, 2019, as published in the Texas Register May 17, 2019, 44 TexReg 2467