| (a) Within 30 calendar days after the date an order
of the executive commissioner under §509.107(k) of this subchapter
(relating to Administrative Penalty) that imposes an administrative
penalty becomes final, the person shall:
(1) pay the penalty; or
(2) pursuant to Texas Health and Safety Code (HSC) §254.206
(relating to Payment and Collection of Administrative Penalty; Judicial
Review), file a petition for judicial review of the executive commissioner's
order contesting the occurrence of the violation, the amount of the
penalty, or both.
(b) Within the 30-day period prescribed by subsection
(a) of this section, a person who files a petition for judicial review
may:
(1) stay enforcement of the penalty by:
(A) paying the penalty to the court for placement in
an escrow account; or
(B) giving 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 commissioner'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) sending a copy of the affidavit to the executive
commissioner by certified mail.
(3) If the executive commissioner receives a copy of
an affidavit under paragraph (2)(B) of this subsection, the executive
commissioner may file with the court, within five days after the date
the copy is received, a contest to the affidavit. In accordance with
HSC §254.206(c), 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 or to give a supersedeas
bond.
(c) If the person does not pay the penalty and the
enforcement of the penalty is not stayed, HHSC may refer the matter
to the attorney general for collection of the penalty. As provided
by HSC §254.206(d), the attorney general may sue to collect the
penalty.
(d) A decision by the court is governed by HSC §254.206(e)
and (f) and provides the following.
(1) If the court sustains the finding that a violation
occurred, 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.
(2) If the court does not sustain the finding that
a violation occurred, the court shall order that a penalty is not
owed.
(e) The remittance of penalty and interest is governed
by HSC §254.206(g) and provides the following.
(1) If the person paid the penalty and if the amount
of the penalty is reduced or the penalty is not upheld by the court,
the court shall order, when the court's judgment becomes final, that
the appropriate amount plus accrued interest be remitted to the person
within 30 days after the date that the judgment of the court becomes
final.
(2) The interest accrues at the rate charged on loans
to depository institutions by the New York Federal Reserve Bank.
(3) The interest shall be paid for the period beginning
on the date the penalty is paid and ending on the date the penalty
is remitted.
(f) The release of supersedeas bond is governed by
HSC §254.206(h) and provides the following.
(1) If the person gave a supersedeas bond and the court
does not uphold the penalty, the court shall order, when the court's
judgment becomes final, the release of the bond.
(2) If the person gave a supersedeas bond and the amount
of the penalty is reduced, the court shall order the release of the
bond after the person pays the reduced amount.
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