22 Tex. Admin. Code § 367.17 - Administrative Penalty
(a) If the agency
decides to pursue an administrative penalty, a Notice of Alleged Violation must
be issued to the Respondent. This notice will include a brief summary of the
alleged violation, state the amount of the administrative penalty pursued, and
inform the Respondent of the Respondent's right to a hearing before the State
Office of Administrative Hearings on the occurrence of the violation or the
amount of the penalty. There is a rebuttable presumption that the notice is
received three (3) days after it was mailed.
(b) Not later than the 20th day after the
Notice of Alleged Violation is received by the Respondent, the Respondent, in
writing, must:
(1) agree to settle the matter
without a formal hearing before the State Office of Administrative Hearings and
accept the determination and settlement penalty recommended by the agency
staff; or
(2) make a request for a
formal hearing before the State Office of Administrative Hearings on the
occurrence of the violation, the amount of the penalty, or
both.
(c) If, within
twenty (20) days of receipt, the Respondent fails to respond to the Notice of
Alleged Violation and either accept the the agency's determination and
recommended administrative penalty, sanction, or both, or make a written
request for a hearing on the determination, the staff may propose entry of a
default order against the Respondent unless otherwise provided by applicable
law.
(d) Where the Respondent fails
to answer to the Notice of Alleged Violation, the staff may present to the
Board a proposed Default Order containing findings of fact and conclusions of
law. The Board may grant the relief recommended in the proposed Default Order,
or such other relief as may be justified by the evidence presented.
(e) If the Respondent agrees to settle the
matter without a formal hearing and accepts the determination and amount of
penalty recommended by staff, the Respondent must pay the penalty to the Board
according to an agreed schedule, or if there is no agreed schedule, not later
than sixty (60) days following the date that the Notice of Alleged Violation
was issued.
(f) The staff must
report the proposed agreement to the Board stating a summary of the facts or
allegations against the Respondent and the amount of the recommended
administrative penalty. The Board may approve the proposed agreement and its
recommended penalty by order. If the Respondent subsequently violates the
Board's Order adopting the agreement by failing to pay the penalty timely, the
Board may:
(1) refuse to renew the
Respondent's license or registration;
(2) refuse to issue a new license or
registration to the Respondent, under §1310.451 of the Plumbing License
Law;
(3) revoke the Respondent's
license or registration; and
(4)
may sue the Respondent to collect the penalty owed under §1301.712 of the
Plumbing License Law.
(g)
The staff must set a formal hearing on the matter as a contested case before an
administrative law judge at the State Office of Administrative Hearings if:
(1) the Respondent requests a formal hearing
as required by subsection (b)(2) of this section;
(2) the parties do not agree to settle the
matter as stated in subsection (e) of this section;
(3) the Board declines to approve the
proposed agreement in subsection (f) of this section; or
(4) the Respondent attends at the time and
place prescribed in the notice required by subsection (d) of the
section.
(h) Following
the hearing, the administrative law judge must issue a proposal for decision to
the Board containing findings of facts and conclusions of law. The Board has
the discretion to impose the sanction that best accomplishes the Board's
legislatively-assigned enforcement goals. The Board is the ultimate arbiter of
the proper penalty.
(i) The Board
may impose an administrative penalty alone or in addition to other sanctions
permitted under the Plumbing License Law.
(j) In determining the proper administrative
penalty, the Board will apply the factors to be considered set forth in
§1301.702(b) of the Plumbing License Law.
(k) The following table contains guidelines
for the assessment of administrative penalties in disciplinary matters. This
table is for standard violations under normal circumstances and does not
necessarily include every possible violation of the Plumbing License Law or
Board Rules. The table is divided into two classes of violations. Class A
violations are those violations with greater potential to jeopardize public
health, safety, welfare, property, or environment. Class B violations are those
with less immediate potential to jeopardize public health, safety, welfare,
property, or environment.
(l) The
amounts specified in the table in subsection (k) of this section are guidelines
only. The Board retains the right to increase or decrease the amount of an
administrative penalty based on the circumstances in each case. In particular,
the Board may increase the amount of administrative penalties when the
Respondent has committed multiple violations (e.g., some combination of
different violations).
(m) Because
it is the policy of the Board to pursue expeditious resolution of complaints
when appropriate, administrative penalties in uncontested cases may be less
than the amounts specified in the table in subsection (k) of this section.
Among other reasons, this may be because the Respondent admits fault, takes
steps to rectify matters, timely responds to Board concerns, or identifies
mitigating circumstances, and because settlements avoid additional
administrative costs to the Board.
(n) The cost of preparing the transcript of
an administrative hearing is not an administrative penalty. Yet in all cases
where the Board has determined that a violation occurred, the Board assesses
the cost of the transcript of the administrative hearing to the
Respondent.
(o) Based on the
proposal for decision, including the findings of fact and conclusions of law,
the Board must issue an Order stating its decision in the contested case and a
notice to the Respondent of the Respondent's right to judicial review of the
Order.
(p) When the Default Order
adopted under subsection (d) of this section or the Order adopted under
subsection (o) of this section includes the imposition of an administrative
penalty:
(1) not later than the 30th day
after the date that the Default Order or Order becomes final:
(A) the Respondent must pay the penalty to
the Board; or
(B) the Respondent
must file a petition for judicial review contesting the occurrence of the
violation, the amount of the penalty, or both, in accordance with
§1301.707 or §1301.708 of the Plumbing License
Law.
(2) after all
opportunities for judicial review have passed and it is determined that the
Respondent owes the penalty and fails to pay the penalty timely:
(A) the Board is authorized to refuse to
renew the Respondent's license or registration and refuse to issue a new
license or registration to the Respondent, under §1301.707 of the Plumbing
License Law; and
(B) the Attorney
General may sue the Respondent to collect the penalty under §1301.712 of
the Plumbing License Law.
Notes
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