Current through Reg. 49, No. 38; September 20, 2024
(a) Imposition of
penalty.
(1) The department may impose an
administrative penalty on a person licensed under this chapter who violates the
Act, this chapter, or an order adopted under this chapter.
(2) A penalty collected under this section
shall be deposited in the state treasury in the general revenue fund.
(3) A proceeding to impose the penalty is
considered to be a contested case under Government Code, Chapter
2001.
(b) Amount of
penalty.
(1) The amount of the penalty may
not exceed $1,000 for each violation. 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 whether the violator made good faith efforts to correct the
violation; and
(F) any other matter
that justice may require.
(c) Report and notice of violation and
penalty.
(1) If the department initially
determines that a violation occurred, the department shall give written notice
of the report by certified mail to the person alleged to have committed the
violation following the survey exit date.
(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
(b)(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.
(d) Penalty to be paid or hearing requested.
(1) Within 20 calendar days after the date
the notice under subsection (c) of this section, is mailed, 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; and
(C) request a pre-hearing conference to
discuss the violation.
(2) If the person accepts the determination
and recommended penalty or if the person fails to respond to the notice, the
commissioner of health (commissioner) or the commissioner's designee by order
shall approve the determination and impose the recommended penalty.
(e) Hearing.
(1) If the person requests a hearing, it
shall be conducted pursuant to the Administrative Procedure Act, Texas
Government Code, Chapter 2001 and the department's formal hearing
procedures.
(2) All hearings shall
be held in accordance with the requirements of the Health and Safety Code,
Chapter 244.
(f) Options
following decision: pay or appeal. Within 30 calendar days after the date the
order of the commissioner or commissioner's designee 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; and
(3) all appeals shall be under the
substantial evidence rule.
(g) Stay of enforcement of penalty. Stay of
enforcement of penalty shall follow the procedures listed in Health and Safety
Code, §
244.016.
(h) Collection of penalty. Collection of
penalty shall follow the procedure listed in Health and Safety Code, §
244.016.
(i) Remittance of penalty and interest. The
remittance of penalty and interest is governed by Health and Safety Code,
§
244.016(g).
