| (a) The commissioner ex parte may issue an emergency
cease and desist order upon application by division staff if:
(1) the commissioner believes a person regulated by
the division under Labor Code, Title 5 is engaging in conduct violating
a law, rule or order; and
(2) the commissioner believes that the alleged conduct
under paragraph (1) of this subsection will result in harm to the
health, safety, or welfare of another person.
(b) The order must contain the following information:
(1) the name and last known address of the person against
whom the order is entered;
(2) the alleged conduct that the commissioner believes
the person regulated by the division under Labor Code, Title 5 is
engaging in that is a violation of a law, rule, or order and that
the commissioner believes will result in harm to the health, safety,
or welfare of another person;
(3) a statement that the person is to immediately cease
and desist from the acts, methods, or practices stated in the order;
(4) the rights of the person against whom the order
is entered with regard to requesting a hearing to contest the order.
(This statement must include a reference to the specific statute,
rule, or order found to have been violated, a statement of the legal
authority and jurisdiction under which the order is issued, specific
reference to the time limit for requesting a hearing to contest the
order, and reference to the statute or statutes in which the time
limit is contained. This statement must include the fact that the
burden of requesting the hearing is on the person against whom the
order was entered);
(5) a statement that the order is final on the 31st
day after the date the affected person receives the order unless the
affected person requests a hearing; and
(6) a statement regarding the actions that may be taken
or sanctions that may be imposed against the person against whom the
order was entered in the event of violation of the order.
(c) A request for a hearing to contest the order must
be requested not later than the 30th day after the date the affected
person receives the order and must:
(1) be in writing;
(2) be directed to the commissioner and filed with
the division's chief clerk of proceedings; and
(3) state the grounds for the request to set aside
or modify the order.
(d) On receiving a request for a hearing the division
shall serve notice of the time and place of the hearing at the State
Office of Administrative Hearings (SOAH). The hearing shall be held
not later than the 10th day after the date the commissioner receives
the request for a hearing unless the parties mutually agree to a later
hearing date. At the hearing, the person requesting the hearing is
entitled to show cause why the order should not be affirmed and the
burden of proof is on the division to show why the order should be
affirmed.
(e) Agreements to hold the hearing at a later date
must be in writing. The person who is adversely affected by the issuance
of the ex parte emergency cease and desist order and who desires a
hearing regarding such order must file any such agreement with the
division's chief clerk of proceedings before the expiration of the
10th day after the date the request for hearing is received.
(f) Following receipt of the proposal for decision
from SOAH regarding the hearing the commissioner shall review the
proposed decision of the administrative law judge and wholly or partly
affirm, modify, or set aside the order. If the commissioner modifies,
amends, or changes a recommended finding of fact or conclusion of
law, or order of the administrative law judge, the commissioner's
final order shall state the legal basis and the specific reasons for
the change.
(g) Pending a hearing, the order continues in effect
unless the order is stayed by the commissioner.
(h) If the person against whom the order was entered
submits a motion for stay of the ex parte emergency cease and desist
order, the motion may be granted by the commissioner before the date
of the show cause hearing. If the parties agree to a later show cause
hearing date pursuant to subsection (d) of this section, the motion
for stay may be granted by the commissioner before the date of the
show cause hearing upon written motion by any party to the hearing.
If the motion for stay is granted, notice shall be sent to the requesting
party that the order has been stayed in whole or in part and what
part of the order continues to be in effect. If the motion is not
granted before the date of the show cause hearing the motion is denied
and notice is not required of the denial.
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