|(a) Administrative Penalties. The purpose of this section is to establish the criteria and procedures by which the commissioner will assess administrative penalties for violations relating to the provisions of the Act, these rules, and licenses and orders issued pursuant to the Act or the rules. (1) Determining the amount of the penalty. In determining the amount of the penalty, the commissioner shall consider the criteria described in paragraphs (2) - (6) of this subsection. (2) The seriousness of the violation. (A) Violations shall be categorized by one of the following severity levels. (i) Severity Level I covers violations that are most significant and have a direct negative impact on, or represent a threat to, the public health and safety and including, but not limited to, adulteration, misbranding, false representation, or false advertising that results in fraud. (ii) Severity Level II covers violations that are very significant and have impact on the public health and safety including, but not limited to, adulteration, misbranding, false representation, or false advertising, that results in fraud. (iii) Severity Level III covers violations that are significant and which, if not corrected, could threaten the public and have an adverse impact on the public health and safety, including, but not limited to, adulteration, misbranding, false representation, or false advertising that results in fraud. (iv) Severity Level IV covers violations that are of more than minor significance, and if left uncorrected, would lead to more serious circumstances. (v) Severity Level V covers violations that are of minor safety or fraudulent significance. (B) The severity of a violation shall be increased if the violation involves deception or other indications of willfulness. In determining the severity of a violation, there shall be taken into account the economic benefit gained by a person through noncompliance. (3) History of previous violations. The department may consider previous violations. The base penalty may be reduced or increased for past performance. Past performance involves the consideration of the following factors: (A) how similar the previous violation was; (B) how recent the previous violation was; and (C) the number of previous violation(s) in regard to correction of the problem. (4) Demonstrated good faith. The department may consider demonstrated good faith. The base penalty may be reduced if good faith efforts to correct a violation have been made, or are being made. Good faith effort shall be determined on a case by case basis and be fully documented. (5) Hazard to the health and safety of the public. The department may consider the hazard to the health and safety of the public. The base penalty shall be increased when a direct hazard to the health and/or to the safety of the public is involved. It shall be taken into account, but need not be limited to, the following factors: (A) whether any disease or injuries have occurred from the violation; (B) whether any existing conditions contributed to a situation that could expose humans to a health hazard; or (C) whether the consequences would be of an immediate or long range hazard. (6) Other matters. The commissioner may consider other matters as justice may require. (7) Levels of penalties. (A) The Department will impose different levels of penalties for different severity level violations as follows:
Attached Graphic (B) Each day a violation continues may be considered a separate violation. (8) Assessment, payment, and refund procedures. (A) The commissioner may assess an administrative penalty only after a person charged with a violation is given an opportunity for an administrative hearing. The hearing shall be in accordance with the Health and Safety Code, §433.095; the Government Code, Chapter 2001; and the department's formal hearing procedures in Chapter 1 of this title (relating to Texas Board of Health). (B) Payment of an administrative penalty shall be in accordance with the provision of the Health and Safety Code, §433.096. (C) Refund of an administrative penalty shall be in accordance with the provisions of the Health and Safety Code, §433.097. (b) Criminal Penalties. (1) Interference with inspection. (A) A person commits an offense if the person with criminal negligence interrupts, disrupts, impedes, or otherwise interferes with a livestock inspector while the inspector is performing a duty under the Act. (B) An offense under this section is a Class B misdemeanor. (C) It is a defense to prosecution under this section that the interruption, disruption, impediment, or interference alleged consisted of speech only. (2) General. (A) A person commits an offense if the person violates a provision of the Act or these rules for which these rules do not provide another criminal penalty. (B) Except as provided by paragraph (2)(C) of this subsection, an offense under this section is punishable by a fine of not more than $1,000, imprisonment for not more than one year, or both. (C) If an offense under this section involves intent to defraud or a distribution or attempted distribution of an adulterated article, except adulteration described by Health and Safety Code (HSC), §433.004(11), (12), or (13), the offense is punishable by a fine of not more than $10,000, imprisonment for not more than three years, or both. (D) A person does not commit an offense under this section by receiving for transportation an article in violation of the Act if the receipt is in good faith and if the person furnishes, on request of a representative of the commissioner: (i) the name and address of the person from whom the article is received; and (ii) any document pertaining to the delivery of the article. (E) This section does not require the commissioner to report for prosecution, or for institution of complaint or injunction proceedings, a minor violation of this chapter if the commissioner believes that the public interest will be adequately served by a suitable written warning notice. (3) Injunction. (A) If it appears that a person has violated or is violating the Act or a rule adopted under the Act, the commissioner may request the attorney general or the district attorney or county attorney in the jurisdiction where the violation is alleged to have occurred, is occurring, or may occur to institute a civil suit for: (i) an order injoining the violation; or (ii) a permanent or temporary injunction, a temporary restraining order, or other appropriate remedy, if the commissioner shows that the person has engaged in or is engaging in a violation. (B) Venue for a suit brought under this section is in the county in which the violation occurred or in Travis County. (C) The commissioner or the attorney general may recover reasonable expenses incurred in obtaining injunctive relief under this section, including investigation and court costs, reasonable attorney's fees, witness fees, and other expenses. The expenses recovered by the commissioner under this section may be used for the administration and enforcement of HSC, Chapter 433. The expenses recovered by the attorney general may be used by the attorney general for any purpose. (4) Emergency Withdrawal of Mark or Suspension of Inspection Services. (A) The commissioner or the commissioner's designee may immediately withhold the mark of inspection or suspend or withdraw inspection services if: (i) the commissioner or the commissioner's designee determines that a violation of the Act or these rules presents an imminent threat to public health and safety; or (ii) a person affiliated with the processing establishment impedes an inspection under this chapter, including, but not limited to, assaulting, threatening to assault, intimidating, or interfering with a department employee. (B) An affected person is entitled to a review of an action of the commissioner or the commissioner's designee under subsection (a) in the same manner that a refusal or withdrawal of inspection services may be reviewed under HSC, §433.028. (C) For purposes of this section only, the definition of imminent threat to public health and safety includes, but is not limited to: (i) the establishment produced and shipped adulterated or misbranded product as defined under HSC, §433.004 and §433.005; (ii) the establishment does not have a HACCP plan as specified in 9 CFR, §417.2; (iii) the establishment does not have Sanitation Standard Operating Procedures as specified in 9 CFR, §416.11 and §416.12; (iv) sanitary conditions are such that products in the establishment are or would be rendered adulterated under HSC, §433.004; or (v) the establishment violated the terms of a regulatory control action as specified in HSC, §433.030, 9 CFR, §310.4, or 9 CFR, §416.6. (D) This section in no way restricts or prohibits the department from taking action under HSC, Chapter 431, HSC, §433.008, the Federal Meat Inspection Act (21 USC 12), and the Poultry Products Inspection Act (21 USC 10) and the regulations adopted thereunder in §221.11 of this title (relating to Federal Regulations on Meat and Poultry Inspection).