Sec. 42.078. ADMINISTRATIVE PENALTY. (a) The department may impose an administrative sanction or an administrative penalty against a facility or family home licensed, registered, or listed under this chapter that violates this chapter or a rule or order adopted under this chapter. In addition, the department may impose an administrative penalty against a facility or family home or a controlling person of a facility or family home if the facility, family home, or controlling person:
(1) violates a term of a license or registration issued under this chapter;
(2) makes a statement about a material fact that the facility or person knows or should know is false:
(A) on an application for the issuance of a license or registration or an attachment to the application; or
(B) in response to a matter under investigation;
(3) refuses to allow a representative of the department to inspect:
(A) a book, record, or file required to be maintained by the facility; or
(B) any part of the premises of the facility;
(4) purposefully interferes with the work of a representative of the department or the enforcement of this chapter; or
(5) fails to pay a penalty assessed under this chapter on or before the date the penalty is due, as determined under this section.
(a-1) Except as provided by Subsection (a-2), nonmonetary administrative sanctions, including corrective action plans, probation, and evaluation periods, shall be imposed when appropriate before administrative penalties.
(a-2) The department may impose an administrative penalty without first imposing a nonmonetary administrative sanction for violating a minimum standard applicable to a facility or family home under this chapter that is determined by the department to be a high-risk standard, including background check standards, safety hazard standards, and supervision standards.
(b) Each day a violation continues or occurs is a separate violation for purposes of imposing a penalty. The penalty for a violation may be in an amount not to exceed the following limits, based on the maximum number of children for whom the facility or family home was authorized to provide care or the number of children under the care of the child-placing agency when the violation occurred:
(1) for violations that occur in a facility other than a residential child-care facility:
Number of childrenMaximum amount of penalty20 or less$5021-40 $6041-60 $7061-80 $8081-100 $100 More than 100 $150(2) for violations that occur in a residential child-care facility:
Number of childrenMaximum amount of penalty20 or less$10021-40 $15041-60 $20061-80 $25081-100 $375 More than 100 $500(c) In addition to the number of children, the amount of the penalty shall be based on:
(1) the seriousness of the violation, including the nature, circumstances, extent, and gravity of any prohibited acts, and the hazard or potential hazard created to the health, safety, or economic welfare of the public;
(2) the economic harm to property or the environment caused by the violation;
(3) the history of previous violations;
(4) the amount necessary to deter future violations;
(5) efforts to correct the violation; and
(6) any other matter that justice may require.
(d) Monetary penalties may not be assessed for violations that are the result of clerical errors.
(e) If the department determines that a violation has occurred, the department may issue a recommendation on the imposition of a penalty, including a recommendation on the amount of the penalty.
(f) Within 14 days after the date the recommendation is issued, the department shall give written notice of the recommendation to the person owning or operating the facility or family home or to the controlling person, if applicable. The notice may be given by certified mail. The notice must include a brief summary of the alleged violation and a statement of the amount of the recommended penalty and must 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 the occurrence of the violation and the amount of the penalty.
(g) Within 20 days after the date the person receives the notice, the person in writing may accept the determination and recommended penalty of the department or may make a written request for a hearing on the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty.
(h) If the person accepts the determination and recommended penalty of the department or fails to respond to the notice in a timely manner, the department shall issue an order and impose the recommended penalty.
(i) If the person requests a hearing, the department shall set a hearing and give notice of the hearing to the person. The hearing shall be held by an administrative law judge of the State Office of Administrative Hearings. The administrative law judge shall make findings of fact and conclusions of law and issue a final decision finding that a violation has occurred and imposing a penalty or finding that no violation occurred.
(j) The notice of the administrative law judge'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.
(k) Within 30 days after the date the administrative law judge's order becomes final as provided by Section 2001.144, Government Code, the person shall:
(1) pay the amount of the penalty;
(2) pay the amount of the penalty and file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty; or
(3) without paying the amount of the penalty, file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty.
(l) Within the 30-day period, a person who acts under Subsection (k)(3) may:
(1) stay enforcement of the penalty by:
(A) paying the amount of 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 for the amount of the penalty and that is effective until all judicial review of the 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 amount of the penalty and is financially unable to give the supersedeas bond; and
(B) giving a copy of the affidavit to the department by certified mail.
(m) On receipt of a copy of an affidavit under Subsection (l)(2), the department may file with the court, within five days after the date the copy is received, a contest to the affidavit. 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 amount of the penalty and to give a supersedeas bond.
(n) If the person does not pay the amount of the penalty and the enforcement of the penalty is not stayed, the department may refer the matter to the attorney general for collection of the amount of the penalty.
(o) Judicial review of the order:
(1) is instituted by filing a petition as provided by Subchapter G, Chapter 2001, Government Code; and
(2) is under the substantial evidence rule.
(p) If the court sustains the occurrence of the violation, 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. If the court does not sustain the occurrence of the violation, the court shall order that no penalty is owed.
(q) 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 charged on loans to depository institutions by the New York Federal Reserve Bank, 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. If the person gave a supersedeas bond and if the amount of the penalty is not upheld by the court, the court shall order the release of the bond. If the person gave a supersedeas bond and if the amount of the penalty is reduced, the court shall order the release of the bond after the person pays the amount.
(r) A penalty collected under this section shall be sent to the comptroller for deposit in the general revenue fund.
(s) All proceedings under this section are subject to Chapter 2001, Government Code.
Added by Acts 1997, 75th Leg., ch. 1022, Sec. 43, eff. Sept. 1, 1997. Amended by Acts 1999, 76th Leg., ch. 1129, Sec. 4, eff. Sept. 1, 1999.
Amended by:
Acts 2005, 79th Leg., Ch. 268 (S.B. 6), Sec. 1.110(a), eff. September 1, 2005.
Acts 2007, 80th Leg., R.S., Ch. 1406 (S.B. 758), Sec. 42, eff. September 1, 2007.
Acts 2011, 82nd Leg., R.S., Ch. 1082 (S.B. 1178), Sec. 9, eff. September 1, 2011.
Acts 2013, 83rd Leg., R.S., Ch. 746 (S.B. 427), Sec. 4, eff. September 1, 2013.
Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 4.239, eff. April 2, 2015.
Acts 2015, 84th Leg., R.S., Ch. 944 (S.B. 206), Sec. 82, eff. September 1, 2015.
Acts 2015, 84th Leg., R.S., Ch. 1057 (H.B. 2070), Sec. 4, eff. September 1, 2015.
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