| (a) Following the hearing the administrative law judge
shall issue a proposal for decision containing findings of facts and
conclusions of law. While the administrative law judge may recommend
a sanction, findings of fact and conclusions of law are inappropriate
for sanction recommendations, and sanction recommendations in the
form of findings of fact and conclusions of law are an improper application
of applicable law and these rules. In all cases, the commission or
Agency Chief has the discretion to impose the sanction that best accomplishes
the commission's legislatively-assigned enforcement goals. The commission
or Agency Chief is the ultimate arbiter of the proper penalty.
(b) The commission, acting through the Agency Chief
may, after notice and hearing required by Government Code, Chapter
2001, Administrative Procedure Act, impose an order requiring payment
of an administrative penalty or monetary forfeiture in an amount not
to exceed $1,000 for each violation of Government Code, Chapter 419,
or rule promulgated there under, as provided by Government Code, §419.906.
(c) In determining the amount of the administrative
penalty or monetary forfeiture the commission or the Agency Chief
shall consider:
(1) the seriousness of the violation, including, but
not limited to, the nature, circumstances, extent, and gravity of
the prohibited act, and the hazard or potential hazard created to
the health and safety of the public;
(2) the economic damage to property or the public's
interests or confidences caused by the violation;
(3) the history of previous violations;
(4) any economic benefit gained through the violation;
(5) the amount necessary to deter future violations;
(6) the demonstrated good faith of the person, including
efforts taken by the alleged violator to correct the violation;
(7) the economic impact of imposition of the penalty
or forfeiture on the person; and
(8) any other matters that justice may require.
(d) The commission or Agency Chief retains the right
to increase or decrease the amount of an administrative penalty based
on the circumstances in each case. In particular, the commission or
Agency Chief may increase the amount of administrative penalties when
the respondent has committed multiple violations (e.g., some combination
of different violations). Any party aggrieved of a final decision
or order of the Agency Chief in a contested case may appeal to the
commission after the decision or order complained of is final. An
appeal to the commission for review of action of the Agency Chief
shall be made within 30 days from the date that the writing evidencing
the official action or order complained of is final and appealable,
but for good cause shown, the commission may allow an appeal after
that date. A motion for rehearing is not a prerequisite for an appeal
to the commission.
(e) Oral argument. On the request of any party, the
commission may allow oral argument prior to the final determination
of an appeal of a decision or order of the Agency Chief.
(f) If the Agency Chief's final decision or order is
appealed to the commission, the matter shall be set for the next available
commission meeting.
(g) Because it is the policy of the commission to pursue
expeditious resolution of complaints when appropriate, administrative
penalties in uncontested cases may be less than the amounts assessed
in contested cases. Among other reasons, this may be because the respondent
admits fault, takes steps to rectify matters, timely responds to commission
concerns, or identifies mitigating circumstances, and because settlements
avoid additional administrative costs.
(h) The commission or Agency Chief may impose an administrative
penalty alone or in addition to other permitted sanctions.
|
| Source Note: The provisions of this §401.105 adopted to be effective March 8, 2001, 26 TexReg 2040; amended to be effective February 26, 2015, 40 TexReg 826; amended to be effective January 11, 2023, 48 TexReg 51 |
