Current through Reg. 49, No. 38; September 20, 2024
(a) Within 30 calendar days after the date an
order of the executive commissioner under §
509.107(k) of
this subchapter (relating to Administrative Penalty) that imposes an
administrative penalty becomes final, the person shall:
(1) pay the penalty; or
(2) pursuant to Texas Health and Safety Code
(HSC) §254.206 (relating to Payment and Collection of Administrative
Penalty; Judicial Review), file a petition for judicial review of the executive
commissioner's order contesting the occurrence of the violation, the amount of
the penalty, or both.
(b)
Within the 30-day period prescribed by subsection (a) of this section, a person
who files a petition for judicial review may:
(1) stay enforcement of the penalty by:
(A) paying the penalty to the court for
placement in an escrow account; or
(B) giving 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 penalty and is financially unable to give the
supersedeas bond; and
(B) sending a
copy of the affidavit to the executive commissioner by certified
mail.
(3) If the
executive commissioner receives a copy of an affidavit under paragraph (2)(B)
of this subsection, the executive commissioner may file with the court, within
five days after the date the copy is received, a contest to the affidavit. In
accordance with HSC §254.206(c), 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.
(c) If the person does not pay the
penalty and the enforcement of the penalty is not stayed, HHSC may refer the
matter to the attorney general for collection of the penalty. As provided by
HSC §254.206(d), the attorney general may sue to collect the
penalty.
(d) A decision by the
court is governed by HSC §254.206(e) and (f) 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 a
penalty is not owed.
(e)
The remittance of penalty and interest is governed by HSC §254.206(g) 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.
(f) The release of supersedeas bond is
governed by HSC §254.206(h) and provides the following.
(1) If the person gave a supersedeas bond and
the court does not uphold the penalty, 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.
