OCCUPATIONS CODE
CHAPTER 264. PENALTIES AND ENFORCEMENT PROVISIONS
SUBCHAPTER A. ADMINISTRATIVE PENALTY
§ 264.001. IMPOSITION OF PENALTY. The board may impose
an administrative penalty on a person licensed or regulated under
this subtitle who violates this subtitle or a rule or order adopted
under this subtitle.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.
§ 264.002. AMOUNT OF PENALTY. (a) The amount of the
administrative penalty may not exceed $5,000 for each violation.
Each day a violation continues or occurs is a separate violation for
purposes of imposing a penalty.
(b) The executive director or a board subcommittee, of
which, at least one member is a public member of the board, shall
determine the amount of the penalty based on a standardized penalty
schedule. The board by rule shall develop the schedule based on:
(1) the seriousness of the violation, including:
(A) the nature, circumstances, extent, and
gravity of the violation; and
(B) the hazard or potential hazard created to the
health, safety, or welfare of the public;
(2) the economic damage to property or the environment
caused by the violation;
(3) the history of previous violations;
(4) the amount necessary to deter a future violation;
(5) efforts made to correct the violation; and
(6) any other matter that justice may require.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.
§ 264.003. REPORT AND NOTICE OF VIOLATION AND
PENALTY. (a) If the executive director or a board subcommittee
determines that a violation has occurred, the executive director or
board subcommittee may issue to the board a report stating:
(1) the facts on which the determination is based; and
(2) the recommendation of the executive director or
the subcommittee on the imposition of the administrative penalty,
including a recommendation on the amount of the penalty.
(b) Not later than the 14th day after the date the report is
approved by the board, the executive director shall give written
notice of the report to the person on whom the penalty may be
imposed. The notice may be given by certified mail. The notice
must:
(1) include a notice of each alleged violation;
(2) state the amount of the recommended penalty; and
(3) inform the person of the person's right to a
hearing on the occurrence of the violation, the amount of the
penalty, or both.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.
§ 264.004. PENALTY TO BE PAID OR HEARING
REQUESTED. (a) Not later than the 20th day after the date the
person receives the notice, the person may:
(1) accept, in writing, the executive director's or
subcommittee's determination and recommended administrative
penalty; or
(2) make a written request for a hearing on the
occurrence of the violation, the amount of the penalty, or both.
(b) If the person accepts the determination and recommended
penalty, the board by order shall approve the determination and
impose the recommended penalty.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.
§ 264.005. HEARING. (a) If the person requests a
hearing or fails to respond in a timely manner to the notice, the
executive director shall set a hearing and give notice of the
hearing to the person.
(b) An administrative law judge of the State Office of
Administrative Hearings shall hold the hearing.
(c) The administrative law judge shall make findings of fact
and conclusions of law and promptly issue to the board a proposal
for decision as to the occurrence of the violation and the amount of
any proposed administrative penalty.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.
§ 264.006. DECISION BY BOARD. (a) Based on the
findings of fact, conclusions of law, and proposal for decision,
the board by order may determine that:
(1) a violation occurred and impose an administrative
penalty; or
(2) a violation did not occur.
(b) The notice of the board's order given to the person
under Chapter 2001, Government Code, must include a statement of
the right of the person to judicial review of the order.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.
§ 264.007. OPTIONS FOLLOWING DECISION: PAY OR
APPEAL. (a) Not later than the 30th day after the date the
board's order becomes final, the person shall:
(1) pay the administrative penalty;
(2) pay the penalty and file a petition for judicial
review contesting the occurrence of the violation, the amount of
the penalty, or both; or
(3) without paying the penalty, file a petition for
judicial review contesting the occurrence of the violation, the
amount of the penalty, or both.
(b) Within the 30-day period, a person who acts under
Subsection (a)(3) may:
(1) stay enforcement of the penalty by:
(A) paying the penalty to the court for placement
in an escrow account; or
(B) giving to the court a supersedeas bond that
is approved by the court and that is:
(i) for the amount of the penalty; and
(ii) effective until judicial review of the
board'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) giving a copy of the affidavit to the
executive director by certified mail.
(c) On receipt of a copy of an affidavit under Subsection
(b)(2), the executive director may file with the court a contest to
the affidavit not later than the fifth day after the date the copy
is received.
(d) 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 and to give a
supersedeas bond.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.
§ 264.008. COLLECTION OF PENALTY. If the person does
not pay the administrative penalty and the enforcement of the
penalty is not stayed, the executive director may refer the matter
to the attorney general for collection of the penalty.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.
§ 264.009. DETERMINATION BY COURT. (a) If the court
sustains the determination that a violation has occurred after the
court reviews the board's order imposing an administrative penalty,
the court may uphold or reduce the amount of the penalty and order
the person to pay the full or reduced penalty.
(b) If the court does not sustain the determination that a
violation occurred, the court shall order that a penalty is not
owed.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.
§ 264.010. REMITTANCE OF PENALTY AND INTEREST. (a) If
after judicial review, the penalty is reduced or not upheld by the
court, the court shall, after the judgment becomes final:
(1) order that the appropriate amount, plus accrued
interest, be remitted to the person if the person paid the penalty;
or
(2) order the release of the bond after the person pays
the penalty imposed if the person posted a supersedeas bond.
(b) The interest paid under Subsection (a)(1) is the rate
charged on loans to depository institutions by the New York Federal
Reserve Bank. The interest is paid for the period beginning on the
date the penalty is paid and ending on the date the penalty is
remitted.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.
§ 264.011. INFORMAL ASSESSMENT OF ADMINISTRATIVE
PENALTY. This subchapter does not prevent the board from assessing
an administrative penalty using an informal proceeding under
Section 263.003.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.
§ 264.012. ADMINISTRATIVE PROCEDURE. A proceeding
under this subchapter is subject to Chapter 2001, Government Code.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.
SUBCHAPTER B. INJUNCTION; CEASE AND DESIST ORDER
§ 264.051. INJUNCTION. (a) The state shall file suit
for injunction against a person who practices or intends to
practice dentistry in violation of state law. The suit shall be
filed in the county in which the defendant practices or intends to
practice dentistry.
(b) The state is not required to demonstrate that any person
was injured by the alleged prohibited practice.
(c) If the defendant is found to have been unlawfully
practicing dentistry or to be about to provide services in a manner
that is the unlawful practice of dentistry, the court shall
permanently enjoin the defendant from practicing dentistry in
violation of law.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.
§ 264.052. REPRESENTATION OF STATE. The attorney
general or the district attorney or county attorney of the county in
which the unlawful acts occurred shall represent the state in a suit
under Section 264.051.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. Amended
by Acts 2003, 78th Leg., ch. 17, § 22, eff. Sept. 1, 2003.
§ 264.0525. CEASE AND DESIST ORDER. (a) The board may
serve a proposed cease and desist order on a person the board
believes is engaging or is likely to engage in an activity without a
license or registration certificate required by this subtitle. The
order must:
(1) be delivered by personal delivery or registered or
certified mail, return receipt requested, to the person's last
known address;
(2) state the acts or practices alleged to be an
unauthorized activity; and
(3) state the effective date of the order, which may
not be before the 21st day after the date the proposed order is
delivered or mailed.
(b) Unless the person against whom the proposed order is
directed requests a hearing in writing before the effective date of
the order, the order takes effect and is final and nonappealable as
to that person.
(c) A requested hearing on a proposed order shall be held
not later than the 30th day after the date the board receives the
written request for a hearing unless the parties agree to a later
hearing date. A hearing under this subsection is subject to Chapter
2001, Government Code.
(d) After the hearing, the board shall issue or decline to
issue a cease and desist order. The proposed order may be modified
as necessary to conform to the findings at the hearing. An order
issued under this subsection:
(1) is immediately final for purposes of enforcement
and appeal; and
(2) must require the person to immediately cease and
desist from the unauthorized activity.
(e) The board may release to the public a final cease and
desist order issued under this section or information relating to
the existence of the order if the board determines that the release
would enhance the effective enforcement of the order or will serve
the public interest.
Added by Acts 2003, 78th Leg., ch. 17, § 23, eff. Sept. 1, 2003.
§ 264.0526. EMERGENCY CEASE AND DESIST ORDER. (a) The
board may issue an emergency cease and desist order to a person if
the board reasonably believes that:
(1) the person is engaging or is likely to engage in an
activity without a license or registration certificate required by
this subtitle; and
(2) the unauthorized activity constitutes a clear,
imminent, or continuing threat to a person's physical health or
well-being.
(b) The order must:
(1) be delivered on issuance to the person affected by
the order by personal delivery or registered or certified mail,
return receipt requested, to the person's last known address;
(2) state the acts or practices alleged to be an
unauthorized activity and require the person immediately to cease
and desist from the unauthorized activity; and
(3) contain a notice that a request for hearing may be
filed under this section.
(c) Unless the person against whom the emergency order is
directed requests a hearing in writing before the 11th day after the
date it is served on the person, the emergency order is final and
nonappealable as to that person. A request for a hearing must:
(1) be in writing and directed to the board; and
(2) state the grounds for the request to set aside or
modify the order.
(d) On receiving a request for a hearing, the board shall
serve notice of the time and place of the hearing by personal
delivery or registered or certified mail, return receipt requested.
The hearing must be held not later than the 10th day after the date
the board receives the request for a hearing unless the parties
agree to a later hearing date. A hearing under this subsection is
subject to Chapter 2001, Government Code.
(e) After the hearing, the board shall affirm, modify, or
set aside in whole or in part the emergency cease and desist order.
An order affirming or modifying the emergency cease and desist
order is immediately final for purposes of enforcement and appeal.
(f) An order continues in effect unless the order is stayed
by the board. The board may impose any condition before granting a
stay of the order.
(g) The board may release to the public a final cease and
desist order issued under this section or information regarding the
existence of the order if the board determines that the release
would enhance the effective enforcement of the order or will serve
the public interest.
Added by Acts 2003, 78th Leg., ch. 17, § 23, eff. Sept. 1, 2003.
§ 264.0527. APPEAL OF CEASE AND DESIST ORDER. (a) A
person affected by a cease and desist order issued, affirmed, or
modified after a hearing may file a petition for judicial review.
(b) A filed petition for judicial review does not stay or
vacate the order unless the court, after hearing, specifically
stays or vacates the order.
Added by Acts 2003, 78th Leg., ch. 17, § 23, eff. Sept. 1, 2003.
§ 264.053. REMEDIES CUMULATIVE. The remedies provided
by this subchapter are in addition to criminal prosecution and
cumulative of other remedies provided to prevent the unlawful
practice of dentistry.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999. Amended
by Acts 2003, 78th Leg., ch. 17, § 24, eff. Sept. 1, 2003.
SUBCHAPTER C. CIVIL PENALTY
§ 264.101. CIVIL PENALTY. (a) A person who violates a
provision of this subtitle is liable to the state for a civil
penalty in an amount not to exceed $5,000.
(b) Each day a violation continues or occurs is a separate
violation for the purpose of imposing the civil penalty.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.
§ 264.102. COLLECTION OF CIVIL PENALTY. At the board's
request, the attorney general or the district attorney or county
attorney of the county in which the violation is alleged to have
occurred shall file suit to collect the civil penalty.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.
SUBCHAPTER D. CRIMINAL PENALTY
§ 264.151. CRIMINAL PENALTY. (a) A person commits an
offense if the person violates this subtitle.
(b) An offense under this section is a Class A misdemeanor.
(c) A violation under this section does not include a
violation to which Section 262.203 applies.
(d) If it is shown at the trial of an offense under this
section that the defendant was previously convicted under this
section or if the offense involves practicing without an
appropriate board license, the offense is a felony of the third
degree.
(e) Each day of a violation is a separate offense.
Acts 1999, 76th Leg., ch. 388, § 1, eff. Sept. 1, 1999.
