FINANCE CODE
CHAPTER 14. CONSUMER CREDIT COMMISSIONER
SUBCHAPTER A. GENERAL PROVISIONS
§ 14.001. DEFINITIONS. (a) In this chapter:
(1) "Document" includes books, accounts,
correspondence, records, and papers.
(2) "Office" means the Office of Consumer Credit
Commissioner.
(b) The definitions provided by Section 341.001 apply to
this chapter.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
SUBCHAPTER B. OPERATION OF OFFICE
§ 14.051. CONSUMER CREDIT COMMISSIONER. (a) The
finance commission shall appoint the commissioner.
(b) The commissioner:
(1) serves at the will of the commission; and
(2) is subject to orders and directions of the
commission.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997. Amended
by Acts 2001, 77th Leg., ch. 867, § 17, eff. Sept. 1, 2001.
§ 14.052. DIVISION OF CONSUMER PROTECTION. The
division of consumer protection is a division in the office and is
under the direction of the commissioner.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 14.053. COMPENSATION OF EMPLOYEES OF
OFFICE. (a) Chapter 654, Government Code, applies to an office
position only if the position is classified in salary groups 1-10
under the state's position classification plan in effect on January
1, 1989, or a comparable position under a successor plan.
(b) The legislature in the General Appropriations Act may
determine the total amount appropriated to the office but may not
determine the number or salaries of employees of the office in
exempt positions.
(c) The finance commission, subject to the limits provided
by this subchapter, shall determine the number of employees of the
office in exempt positions and the salaries of those employees.
(d) The office may use money appropriated to it for any
purpose to pay salaries determined by the finance commission unless
the legislature in the General Appropriations Act expressly limits
the use of particular funds for a particular purpose.
(e) An employee of the office in an exempt position other
than the position of commissioner may not receive a salary that
exceeds an amount that is $2,000 less than the commissioner's
salary.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 14.054. OATH OF OFFICE. Before assuming the duties
of office, the commissioner and each assistant commissioner,
examiner, and other employee of the office must take an oath of
office
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997. Amended
by Acts 2003, 78th Leg., ch. 285, § 7, eff. Sept. 1, 2003.
§ 14.055. LIABILITY. (a) The commissioner or an
assistant commissioner, examiner, or other employee of the office
is not personally liable for damages arising from the person's
official act or omission unless the act or omission is corrupt or
malicious.
(b) The attorney general shall defend an action brought
against a person because of an official act or omission under
Subsection (a) regardless of whether the person has terminated
service with the office when the action is instituted.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 14.056. CONFLICT OF INTEREST. (a) In this section,
"Texas trade association" means a cooperative and voluntarily
joined association of business or professional competitors in this
state designed to assist its members and its industry or profession
in dealing with mutual business or professional problems and in
promoting their common interest.
(b) A person may not be an employee of the office employed in
a "bona fide executive, administrative, or professional capacity,"
as that phrase is used for purposes of establishing an exemption to
the overtime provisions of the federal Fair Labor Standards Act of
1938 (29 U.S.C. Section 201 et seq.), and its subsequent
amendments, if:
(1) the person is an officer, employee, or paid
consultant of a Texas trade association in an industry regulated by
the office; or
(2) the person's spouse is an officer, manager, or paid
consultant of a Texas trade association in an industry regulated by
the office.
(c) A person may not act as the general counsel to the office
if the person is required to register as a lobbyist under Chapter
305, Government Code, because of the person's activities for
compensation on behalf of a profession related to the operation of
the office.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997. Amended
by Acts 2001, 77th Leg., ch. 1235, § 1, eff. Sept. 1, 2001.
§ 14.057. PERFORMANCE EVALUATIONS; MERIT
PAY. (a) The commissioner or a person designated by the
commissioner shall develop a system of annual employee performance
evaluations based on measurable job tasks.
(b) Merit pay for employees of the office must be based on
the system established under this section.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 14.058. EQUAL EMPLOYMENT OPPORTUNITY. (a) The
commissioner or the commissioner's designee shall prepare and
maintain a written policy statement that implements a program of
equal employment opportunity to ensure that all personnel decisions
are made without regard to race, color, disability, sex, religion,
age, or national origin.
(b) The policy statement must include:
(1) personnel policies, including policies relating
to recruitment, evaluation, selection, training, and promotion of
personnel, that show the intent of the office to avoid the unlawful
employment practices described by Chapter 21, Labor Code; and
(2) an analysis of the extent to which the composition
of the office's personnel is in accordance with state and federal
law and a description of reasonable methods to achieve compliance
with state and federal law.
(c) The policy statement must:
(1) be updated annually;
(2) be reviewed by the state Commission on Human
Rights for compliance with Subsection (b)(1); and
(3) be filed with the governor's office
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997. Amended
by Acts 2001, 77th Leg., ch. 1235, § 2, eff. Sept. 1, 2001.
§ 14.059. INTRA-AGENCY CAREER LADDER. (a) The
commissioner or a person designated by the commissioner shall
develop an intra-agency career ladder program.
(b) The program must require intra-agency posting of all
nonentry level positions for at least 10 days before public
posting.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 14.060. FINANCIAL OVERSIGHT. (a) The commissioner,
on the direction of the finance commission, shall report to the
finance commission on all the receipts and expenditures of the
office.
(b) The finance commission may examine or cause to be
examined the financial records of the office.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 14.061. COST OF AUDIT. The cost of an audit of the
office under Chapter 321, Government Code, shall be paid to the
state auditor from the funds of the office.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 14.062. CONSUMER INFORMATION AND
COMPLAINTS. (a) The office shall maintain a file on each written
complaint filed with the office. The file must include:
(1) the name of the person who filed the complaint;
(2) the date the complaint is received by the office;
(3) the subject matter of the complaint;
(4) the name of each person contacted in relation to
the complaint;
(5) a summary of the results of the review or
investigation of the complaint; and
(6) an explanation of the reason the file was closed,
if the office closed the file without taking action other than to
investigate the complaint.
(b) The office shall provide to the person filing the
complaint and to each person who is a subject of the complaint a
copy of the office's policies and procedures relating to complaint
investigation and resolution.
(c) The office, at least quarterly until final disposition
of the complaint, shall notify the person filing the complaint and
each person who is a subject of the complaint of the status of the
investigation unless the notice would jeopardize an undercover
investigation.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997. Amended
by Acts 2001, 77th Leg., ch. 1235, § 3, eff. Sept. 1, 2001.
§ 14.063. APPLICATION OF OPEN MEETINGS LAW. The office
is a governmental body subject to Chapter 551, Government Code.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 14.064. CONSUMER INFORMATION. The commissioner
shall:
(1) prepare information of consumer interest
describing:
(A) the regulatory functions of the office; and
(B) the office's procedures by which consumer
complaints are filed with and resolved by the office; and
(2) make the information available to the public and
appropriate state agencies.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 14.065. OFFICE EMPLOYEES. The commissioner may
appoint, remove, and prescribe the duties of assistant
commissioners, examiners, and other employees as necessary to
maintain and operate the office, including the division of consumer
protection.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 14.066. SUNSET PROVISION. The office is subject to
Chapter 325, Government Code (Texas Sunset Act). Unless continued
in existence as provided by that chapter, the office is abolished
September 1, 2013.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997. Amended
by Acts 2001, 77th Leg., ch. 1235, § 4, eff. Sept. 1, 2001.
§ 14.067. EMPLOYEE INCENTIVE PROGRAM. The commissioner
or the commissioner's designee shall provide to agency employees
information and training on the benefits and methods of
participation in the state employee incentive program.
Added by Acts 2001, 77th Leg., ch. 1235, § 5, eff. Sept. 1, 2001.
SUBCHAPTER C. POWERS AND DUTIES OF COMMISSIONER
§ 14.101. GENERAL DUTIES OF COMMISSIONER.
See, also, italicized material following text of this section
The commissioner shall enforce this chapter, Subtitles B and
C of Title 4, and Chapter 394 in person or through an assistant
commissioner, examiner, or other employee of the office.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
Amendment by Acts 1997, 75th Leg., ch. 1396, § 3
V.T.C.A., Government Code § 311.031(c) provides, in part, that
the repeal of a statute by a code does not affect an amendment of the
statute by the same legislature which enacted the code and that the
amendment is preserved and given effect as part of the code
provision.
Section 3 of Acts 1997, 75th Leg., ch. 1396, eff. Sept. 1, 1997,
amends § (1) of Vernon's Ann.Civ.St. art. 5069-2.02A [now this
section] without reference to the repeal of said article by Acts
1997, 75th Leg., ch. 1008, § 6. As so amended, § (1) reads:
"The Consumer Credit Commissioner shall enforce Chapters 2, 3A, 6,
6A, 7, 8, 9, and 15 of this title and the Texas Pawnshop Act (Article
5069-51.01 et seq., Vernon's Texas Civil Statutes) in person or
through assistant commissioners or any examiner or employee."
§ 14.102. EDUCATIONAL AND DEBT COUNSELING
PROGRAMS. The commissioner shall coordinate, encourage, and
assist public and private agencies, organizations, groups, and
consumer credit institutions in developing and operating voluntary
educational and debt counseling programs designed to promote
prudent and beneficial use of consumer credit by residents of this
state.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 14.103. CONSUMER PROTECTION PROGRAMS. The
commissioner, through the division of consumer protection, shall
coordinate, encourage, and assist public and private agencies,
organizations, groups, and consumer protection institutions in
developing and operating voluntary educational consumer protection
programs designed to promote prudent and informed consumer action
by residents of this state.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 14.104. LENDER CONTRACTS. A written contract of an
authorized lender subject to regulation by the office must contain
the name, mailing address, and telephone number of the office.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 14.105. GIFTS AND GRANTS. (a) The commissioner may
accept money, gifts, or grants on behalf of the state for a purpose
related to a consumer credit educational opportunity or to assist a
local government in the exercise of its police power unless the
acceptance is prohibited by Subsection (b) or other law.
Acceptance and use of money under this subsection must be approved
by the finance commission.
(b) The commissioner may not accept or use money offered by:
(1) a person for investigating or prosecuting a
matter; or
(2) a person who is affiliated with an industry that is
regulated by the finance commission.
(c) Money received under Subsection (a) may be appropriated
only for the purpose for which the money was given.
(d) The commissioner is not prohibited by Subsection (b)
from receiving and using money from a person under the jurisdiction
of the commissioner if the receipt and use is expressly authorized
by other law.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 14.106. INFORMATION REGARDING EMPLOYMENT
REQUIREMENTS. The commissioner or the commissioner's designee
shall provide to agency employees, as often as necessary,
information regarding the requirements for employment under this
chapter, including information regarding a person's
responsibilities under applicable laws relating to standards of
conduct for state employees.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997. Amended
by Acts 2001, 77th Leg., ch. 1235, § 6, eff. Sept. 1, 2001.
§ 14.107. FEES. (a) The finance commission shall
establish reasonable and necessary fees for carrying out the
commissioner's powers and duties under this chapter, Title 4, and
Chapters 371, 392, and 394 and under Chapters 38-41, Business &
Commerce Code.
(b) The finance commission by rule shall set the fees for
licensing and examination under Chapter 342, 348, or 371 at amounts
or rates necessary to recover the costs of administering those
chapters. The rules may provide that the amount of a fee charged to
a license holder is based on the volume of the license holder's
regulated business and other key factors. The commissioner may
provide for collection of a single annual fee from a person licensed
under Chapter 342, 348, or 371 to include amounts due for both
licensing and examination.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997. Amended
by Acts 2001, 77th Leg., ch. 867, § 18, eff. Sept. 1, 2001; Acts
2001, 77th Leg., ch. 1235, § 7, eff. Sept. 1, 2001.
§ 14.108. INTERPRETATIONS OF LAW. (a) The
commissioner may issue an interpretation of this chapter or
Subtitle A or B, Title 4, after approval of the interpretation by
the finance commission.
(b) The provisions of Chapter 2001, Government Code, that
relate to the adoption of an administrative rule do not apply to the
issuance of an interpretation under this section.
(c) The commissioner shall publish in the Texas Register, in
a form prescribed by the finance commission, a request for an
interpretation not later than the 10th day after the date on which
the commissioner receives the request.
(d) An interpretation approved by the finance commission
shall be published in the Texas Register, in a form prescribed by
the finance commission, not later than the 10th day after the date
on which the finance commission has approved the interpretation.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
SUBCHAPTER D. CRIMINAL HISTORY RECORD INFORMATION
§ 14.151. OBTAINING INFORMATION. (a) The commissioner
or an assistant commissioner, examiner, or other employee of the
office shall obtain criminal history record information maintained
by the Department of Public Safety, the Federal Bureau of
Investigation Identification Division, or another law enforcement
agency relating to:
(1) an applicant for a license issued by the
commissioner; or
(2) a person licensed under the commissioner's
authority.
(b) For an applicant or license holder that is a business
entity, the criminal history record information requirement of this
section applies to an officer, director, owner, or employee of the
entity or another person having a substantial relationship with the
entity.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 14.152. FINGERPRINT REQUIREMENT; PENALTY. The
commissioner may refuse to grant a license to, or may suspend or
revoke the license of, an applicant or license holder who fails to
provide, on request, a complete set of legible fingerprints on a
fingerprint card format approved by the Department of Public Safety
and the Federal Bureau of Investigation.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 14.153. ACTION BY LAW ENFORCEMENT AGENCIES. (a) The
commissioner shall send fingerprints and other identification
information to the Department of Public Safety to be retained by
that department.
(b) The Department of Public Safety shall use the
information to perform a search of the state criminal history files
and shall report the findings to the office.
(c) The Department of Public Safety shall send fingerprints
and other identification information to the Federal Bureau of
Investigation so that the bureau can perform a search of its
criminal history files.
(d) The Department of Public Safety shall notify the office
of activity reported to the crime records division that identifies
a person with a record maintained under this subchapter.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 14.154. CONFIDENTIALITY. (a) Criminal history
record information received by the office is confidential and is
for the exclusive use of the office.
(b) Except on court order or as provided by Section
14.155(a), the information may not be released or otherwise
disclosed to another person.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 14.155. DISCLOSURE; OFFENSE. (a) The office may not
provide a person being investigated under this subchapter with a
copy of the person's criminal history record obtained from the
Department of Public Safety, Federal Bureau of Investigation
Identification Division, or other law enforcement agency. This
subchapter does not prevent the office from:
(1) disclosing to the person being investigated a date
and place of arrest or an offense or disposition contained in the
criminal history record; or
(2) disclosing criminal history record information
to, and discussing the information with, an authorized law
enforcement agency with an interest in the person to whom the
information relates.
(b) A person commits an offense if the person releases or
discloses information received under this subchapter except on
court order or as provided by Subsection (a). An offense under this
subsection is a Class A misdemeanor.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 14.156. RECOVERY OF COSTS. In addition to an
investigation fee paid to the commissioner by a license applicant,
the commissioner is entitled to recover from an applicant or
license holder the cost of processing an inquiry to determine
whether the person has a criminal history record.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 14.157. RULES. The finance commission shall adopt
rules governing the custody and use of information obtained under
this subchapter.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997. Amended
by Acts 2001, 77th Leg., ch. 867, § 19, eff. Sept. 1, 2001.
SUBCHAPTER E. INVESTIGATION AND ENFORCEMENT
§ 14.201. INVESTIGATION AND ENFORCEMENT AUTHORITY.
See, also, italicized material following text of this section
Investigative and enforcement authority under this
subchapter applies only to this chapter, Subtitles B and C of Title
4, and Chapter 394.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
Amendment by Acts 1997, 75th Leg., ch. 1396, § 4
V.T.C.A., Government Code § 311.031(c) provides, in part, that
the repeal of a statute by a code does not affect an amendment of the
statute by the same legislature which enacted the code and that the
amendment is preserved and given effect as part of the code
provision.
Section 4 of Acts 1997, 75th Leg., ch. 1396, eff. Sept. 1, 1997,
amends § (1) of Vernon's Ann.Civ.St. art. 5069-2.03 [now this
section] without reference to the repeal of said article by Acts
1997, 75th Leg., ch. 1008, § 6. As so amended, § (1) reads:
"The investigative and enforcement authority under this Article
applies only to Chapters 2, 3A, 6, 6A, 7, 8, 9, and 15 of this title
and the Texas Pawnshop Act (Article 5069-51.01 et seq., Vernon's
Texas Civil Statutes). Upon receipt of written complaint or other
reasonable cause to believe that any provision of those statutes
are being violated by any person, the Consumer Credit Commissioner
may request such person to furnish information in regard to a
specific loan or retail transaction or business practice alleged to
be in violation of those statutes."
§ 14.202. REQUEST FOR INFORMATION; FAILURE TO
COMPLY. (a) On receipt of a written complaint or other reasonable
cause to believe that a person is violating a statute listed by
Section 14.201, the commissioner may require the person to furnish
information regarding a specific loan, retail transaction, or
business practice to which the violation relates.
(b) If a person fails to furnish the information requested
by the commissioner, the commissioner may conduct an investigation
to determine whether a violation exists.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 14.203. ISSUANCE OF SUBPOENA OR SUMMONS. (a) During
an investigation, the commissioner may issue a subpoena or summons
that is addressed to a peace officer of this state and requires the
attendance and testimony of a witness or the production of a
document.
(b) A document that is necessary to continue the business of
a person under investigation may not be removed from the office or
place of business of that person, but the commissioner may:
(1) examine, or cause to be examined, the document at
the office or place of business; and
(2) require a copy to be made of a part of the document
related to a matter under investigation.
(c) A copy of a document made under Subsection (b)(2) must
be verified by the affidavit of the person under investigation or by
an officer of that person.
(d) On the commissioner's certification, a copy of a
document made under Subsection (b)(2) is admissible in evidence in
an:
(1) investigation or hearing under this subchapter or
under a statute to which this subchapter applies; or
(2) appeal to the district court.
(e) To implement this section, the commissioner may sign a
subpoena, administer an oath or affirmation, examine a witness, or
receive evidence.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 14.204. ENFORCEMENT OF SUBPOENA; CONTEMPT. (a) If a
person disobeys a subpoena or if a witness appearing before the
commissioner refuses to testify, the commissioner may petition the
district court of a jurisdiction in which the person or witness may
be found, and the court on this petition may issue an order
requiring the person or witness to obey the subpoena, testify, or
produce a document relating to the matter in issue, as applicable.
The court shall treat the application in the same manner as a motion
in a civil suit.
(b) The court shall promptly set an application to enforce a
subpoena under Subsection (a) for hearing and shall cause notice of
the application and the hearing to be served on the person to whom
the subpoena is directed. Notice may be served by a peace officer
of this state.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 14.205. INVESTIGATION BY HEARING
OFFICER. (a) During an investigation described by this
subchapter, the commissioner may appoint a hearing officer to
conduct the investigation.
(b) On appointment, a hearing officer has the same authority
as the commissioner to conduct the investigation, except that the
hearing officer may not issue an order on the subject of the
investigation.
(c) The commissioner may consider the record of an
investigation conducted before a hearing officer in the same manner
and to the same extent as in a hearing before the commissioner.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 14.206. FEES AND EXPENSES. (a) The fee for serving a
subpoena under this subchapter is the same as that paid a sheriff or
constable for performing a similar service.
(b) A witness required to attend a hearing before the
commissioner shall receive for each day's attendance a fee and a
travel and transportation allowance as authorized by law or a rule
adopted by the finance commission.
(c) A fee under Subsection (b) is not payable until the
witness appears at the hearing.
(d) A disbursement made in payment of a fee under this
section shall be included in, and paid in the same manner that is
provided for, other expenses incurred in the administration and
enforcement of the statutes to which this subchapter applies.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997. Amended
by Acts 2001, 77th Leg., ch. 867, § 20, eff. Sept. 1, 2001.
§ 14.207. IMPOSITION OF COSTS ON PARTIES. The
commissioner may impose on a party in interest of record fees,
expenses, or costs incurred in connection with a hearing or may
divide the fee or expense among any or all interested parties as
determined by the commissioner.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 14.208. INJUNCTION; APPEAL. (a) If the
commissioner has reasonable cause to believe that a person is
violating a statute to which this chapter applies, the
commissioner, in addition to any other authorized action, may order
the person to refrain from the violation. A person may appeal the
order to the finance commission in accordance with Chapter 2001,
Government Code.
(b) The commissioner, on relation of the attorney general at
the request of the commissioner, may also bring an action in
district court to enjoin the person from engaging in or continuing
the violation or doing an act that furthers the violation. In the
action, the court may enter as proper an order awarding a
preliminary or final injunction.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 14.209. APPOINTMENT OF RECEIVER. (a) In addition to
other remedies for the enforcement of a restraining order or
injunction, the court in which an action is brought under Section
14.208(b) may impound and appoint a receiver for the defendant's
property and business, including a document relating to the
property or business, as the court considers reasonably necessary
to prevent a violation through use of the property and business.
(b) On appointment and qualification, a receiver has the
powers and duties of a receiver under Chapter 64, Civil Practice and
Remedies Code.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
SUBCHAPTER F. ADMINISTRATIVE PENALTY; RESTITUTION ORDER
§ 14.251. ASSESSMENT OF PENALTY; RESTITUTION
ORDER. (a) The commissioner may assess an administrative penalty
against a person who knowingly and wilfully violates or causes a
violation of this chapter, Chapter 394, or Subtitle B, Title 4, or a
rule adopted under this chapter, Chapter 394, or Subtitle B, Title
4.
(b) The commissioner may order a person who violates or
causes a violation of this chapter, Chapter 394, or Subtitle B,
Title 4, or a rule adopted under this chapter, Chapter 394, or
Subtitle B, Title 4, to make restitution to an identifiable person
injured by the violation.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997. Amended
by Acts 1999, 76th Leg., ch. 62, § 7.29, eff. Sept. 1, 1999.
§ 14.252. AMOUNT OF PENALTY. (a) The commissioner may
assess an administrative penalty for a violation in an amount not to
exceed $1,000 for each day of the violation.
(b) The aggregate amount of penalties under this subchapter
that the commissioner may assess against a person during one
calendar year may not exceed the lesser of:
(1) $50,000; or
(2) $5,000 for each business location at which an
element of a violation occurred.
(c) In determining the amount of an administrative penalty,
the commissioner shall consider:
(1) the seriousness of the violation, including the
nature, circumstances, extent, and gravity of the prohibited act;
(2) the extent of actual or potential harm to a third
party;
(3) the history of violations;
(4) the amount necessary to deter future violations;
(5) efforts to correct the violation; and
(6) any other matter that justice may require.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 14.253. REPORT ON VIOLATION. If the commissioner
determines that a violation occurred, the commissioner may issue a
report that states:
(1) the facts on which the determination is based; and
(2) the commissioner's recommendation on imposition of
a penalty, including a recommendation on the amount of the penalty.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 14.254. NOTICE OF REPORT ON VIOLATION AND PENALTY
RECOMMENDATION. (a) Not later than the 14th day after the date on
which a report is issued, the commissioner shall give written
notice of the report by certified mail to the person charged with
committing or causing the violation.
(b) The notice must:
(1) include a brief summary of the alleged violation;
(2) include a statement of the amount of the
recommended penalty; and
(3) inform the person that the person has a right to a
hearing on the occurrence of the violation, the amount of the
penalty, or both.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 14.255. RESPONSE OF PERSON RECEIVING NOTICE. Not
later than the 20th day after the date on which a person receives
notice under Section 14.254, the person may:
(1) accept in writing the determination and
recommended penalty of the commissioner; or
(2) make a written request for a hearing on the
occurrence of the violation, the amount of the penalty, or both.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 14.256. ACCEPTANCE OF PENALTY. If a person accepts
the determination and recommended penalty of the commissioner, the
commissioner by order shall approve the determination and impose
the recommended penalty.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 14.257. HEARING ON PENALTY; ORDER. (a) If a person
requests a hearing or fails to give a timely response to the notice,
the commissioner shall set a hearing and give notice of the hearing
to the person by certified mail.
(b) The hearing shall be held by a hearings officer who
shall make findings of fact and conclusions of law and promptly
issue a proposal for a decision about the occurrence of the
violation and the amount of a proposed penalty.
(c) According to the findings of fact, conclusions of law,
and proposal for a decision, the commissioner by order may find:
(1) that a violation has occurred and impose a
penalty; or
(2) a violation has not occurred.
(d) Notice of the commissioner's order, given to the person
under Chapter 2001, Government Code, must include a statement of
the person's right to judicial review of the order.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 14.258. COURT ORDERS.
See, also, italicized material following text of this section
(a) A court that sustains the occurrence of a violation may
uphold or reduce the amount of the administrative penalty and order
the person to pay that amount.
(b) A court that does not sustain the occurrence of a
violation shall order that no penalty is owed.
(c) If a person has paid a penalty and a court in a final
judgment reduces or does not uphold the amount, the court shall
order that the appropriate amount plus accrued interest be remitted
to the person. The interest rate is the rate authorized by Chapter
304, and interest shall be paid for the period beginning on the date
the penalty was paid and ending on the date the penalty is remitted.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
Amendment by Acts 1997, 75th Leg., ch. 1396, § 5
V.T.C.A., Government Code § 311.031(c) provides, in part, that
the repeal of a statute by a code does not affect an amendment of the
statute by the same legislature which enacted the code and that the
amendment is preserved and given effect as part of the code
provision.
Section 5 of Acts 1997, 75th Leg., ch. 1396, eff. Sept. 1, 1997,
amends subsec. (l) of Vernon's Ann.Civ.St. art. 5069-2.03A [now
this section] without reference to the repeal of said article by
Acts 1997, 75th Leg., ch. 1008, § 6. As so amended, subsec. (l)
reads:
"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 authorized by Chapter 1E of this title, 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."
§ 14.259. RECOVERY OF COSTS. In addition to the
administrative penalty or restitution amount, the court may
authorize the commissioner to recover from a person who pays an
administrative penalty or restitution amount, or both, reasonable
expenses incurred in obtaining the ordered amount, including the
cost of investigation, witness fees, and deposition expenses.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 14.260. ADMINISTRATIVE PROCEDURE ACT. A proceeding
under this subchapter is subject to Chapter 2001, Government Code.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
SUBCHAPTER G. JUDICIAL REVIEW
§ 14.301. APPEAL OF FINAL DECISION OF COMMISSIONER. A
party in interest aggrieved by a final decision of the commissioner
is entitled to judicial review.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
§ 14.302. APPEAL OF LICENSE WITHHOLDING OR
REVOCATION. An appeal of a decision of the commissioner refusing
to grant a license to an applicant or revoking the license of a
license holder shall be under the substantial evidence rule as
provided by Chapter 2001, Government Code.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997. Amended
by Acts 2001, 77th Leg., ch. 1235, § 8, eff. Sept. 1, 2001.
§ 14.303. STAY OF ORDER PENDING APPEAL. On a showing of
good cause, the commissioner or the reviewing court may enter an
order staying the effect of a final decision of the commissioner
pending appeal by a party in interest.
Acts 1997, 75th Leg., ch. 1008, § 1, eff. Sept. 1, 1997.
