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A BILL TO BE ENTITLED
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AN ACT
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relating to the registration and regulation of certain collection |
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facilities and certified professional collectors that provide |
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collection services in this state; providing penalties. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Title 12, Health and Safety Code, is amended by |
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redesignating Chapter 1001 as Chapter 1001, Subtitle A, Title 12, |
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and adding a heading for Subtitle A to read as follows: |
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SUBTITLE A. GENERAL PROVISIONS |
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SECTION 2. Title 12, Health and Safety Code, is amended by |
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adding Subtitle B to read as follows: |
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SUBTITLE B. DEPARTMENT FUNCTIONS |
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CHAPTER 1051. COLLECTION FACILITIES AND CERTIFIED PROFESSIONAL |
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COLLECTORS |
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SUBCHAPTER A. GENERAL PROVISIONS |
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Sec. 1051.001. DEFINITIONS. In this chapter: |
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(1) "Certified professional collector" means an |
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individual registered under this chapter to perform collection |
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services. |
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(2) "Collection facility" means a facility registered |
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under this chapter to perform collection services. |
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(3) "Department" means the Department of State Health |
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Services. |
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(4) "Executive commissioner" means the executive |
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commissioner of the Health and Human Services Commission. |
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Sec. 1051.002. DEFINITION OF COLLECTION SERVICES. (a) In |
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this chapter, collection services means the provision to a school, |
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governmental agency, or employer of services to collect hair, |
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saliva, urine, sweat, or other specimens from a human body, by |
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persons who are trained and certified according to the type of |
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specimen collected, for: |
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(1) submission to a laboratory that tests the specimen |
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for the presence of drugs or alcohol; or |
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(2) testing of the specimen at an instrumented initial |
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test facility or by the use of a Federal Drug Administration |
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approved point of collection test device. |
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(b) The term does not include services that involve invasive |
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procedures other than tests conducted through an instrumented |
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initial test facility or by the use of a Federal Drug Administration |
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approved point of collection test device recognized by the United |
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States Department of Health and Human Services. |
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Sec. 1051.003. EXEMPTION. This chapter does not apply to: |
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(1) a laboratory certified under 42 U.S.C. Section |
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263a or regulated under other federal law or a facility regulated |
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under federal law that conducts scientific tests on specimens; |
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(2) a person employed by a laboratory or facility |
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described by Subdivision (1); or |
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(3) an individual who performs collection services for |
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a federal agency or who is regulated under 49 C.F.R. Part 40. |
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[Sections 1051.004-1051.050 reserved for expansion] |
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SUBCHAPTER B. DEPARTMENT POWERS AND DUTIES |
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Sec. 1051.051. ADMINISTRATION OF CHAPTER. The department |
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shall administer this chapter. |
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Sec. 1051.052. DEPARTMENT STAFF. The department may employ |
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administrative and clerical staff as necessary to carry out this |
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chapter. |
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Sec. 1051.053. RULES. The executive commissioner shall |
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adopt the rules necessary to administer this chapter, including |
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rules: |
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(1) establishing minimum requirements for |
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registration under this chapter; |
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(2) establishing grounds for suspending, denying, or |
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revoking a certificate of registration or placing a certificate |
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holder on probation; and |
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(3) adopting forms required by this chapter. |
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Sec. 1051.054. FEES. The executive commissioner by rule |
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shall prescribe fees in reasonable amounts sufficient to cover the |
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costs of administering this chapter, including fees for: |
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(1) an initial application for a certificate of |
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registration; |
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(2) issuance of a certificate of registration; |
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(3) issuance of a renewal certificate of registration; |
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and |
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(4) issuance of a duplicate certificate of |
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registration or duplicate renewal certificate of registration. |
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Sec. 1051.055. RULES REGARDING ADVERTISING OR COMPETITIVE |
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BIDDING. (a) The executive commissioner may not adopt rules |
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restricting advertising or competitive bidding by a registrant |
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except to prohibit false, misleading, or deceptive practices. |
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(b) In rules to prohibit false, misleading, or deceptive |
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practices, the executive commissioner may not include a rule that: |
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(1) restricts the use of any medium for advertising; |
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(2) restricts the use of a registrant's personal |
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appearance or voice in an advertisement; |
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(3) relates to the size or duration of an |
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advertisement by the registrant; or |
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(4) restricts the registrant's advertisement under a |
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trade name. |
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[Sections 1051.056-1051.100 reserved for expansion] |
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SUBCHAPTER C. CERTIFICATE OF REGISTRATION |
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Sec. 1051.101. REGISTRATION REQUIRED. (a) A person may not |
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own or operate a facility in this state that performs collection |
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services or represent to the public that the person performs |
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collection services in this state unless the person is registered |
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under this chapter. |
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(b) An individual may not perform collection services in |
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this state or represent to the public that the individual performs |
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collection services in this state unless the individual is |
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registered under this chapter. |
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Sec. 1051.102. ISSUANCE OF CERTIFICATE; QUALIFICATIONS. |
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The department shall issue a certificate of registration to an |
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applicant who: |
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(1) applies and pays a registration fee; |
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(2) presents evidence satisfactory to the department |
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that the applicant: |
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(A) has successfully completed the number of |
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hours of training required by the department; and |
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(B) holds a current certification by a national |
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certifying body recognized by the department or is certified by a |
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professional collector trainer who is certified by a national |
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certifying body recognized by the department; and |
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(3) maintains professional liability insurance in |
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coverage amounts that meet at least the minimum limits of coverage |
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required by executive commissioner rule. |
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Sec. 1051.103. TERM OF CERTIFICATE. (a) A certificate of |
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registration is valid for two years after the date of issuance. |
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(b) The department shall adopt a system under which |
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certificates of registration expire and are renewed on various |
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dates. |
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(c) Not later than the 30th day before the date a person's |
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certificate of registration is scheduled to expire, the department |
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shall send written notice of the impending expiration to the person |
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at the person's last known address according to the records of the |
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department. |
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(d) A person whose certificate of registration has expired |
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may not make a representation for which a certificate of |
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registration is required under Section 1051.101 or perform |
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collection services until the certificate has been renewed. |
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Sec. 1051.104. RENEWAL OF CERTIFICATE. (a) To renew a |
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certificate of registration, a person must submit an application |
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for renewal in the manner prescribed by the department. |
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(b) The application must be accompanied by evidence that the |
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applicant has successfully completed the continuing education |
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courses required by executive commissioner rule. |
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(c) A person who is otherwise eligible to renew a |
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certificate of registration may renew an unexpired certificate by |
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paying the required renewal fee to the department before the |
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expiration date of the certificate. |
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(d) A person whose certificate of registration has been |
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expired for 90 days or less may renew the certificate by paying to |
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the department a renewal fee that is equal to 1-1/2 times the |
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normally required renewal fee. |
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(e) A person whose certificate of registration has been |
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expired for more than 90 days but less than one year may renew the |
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certificate by paying to the department a renewal fee that is equal |
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to two times the normally required renewal fee. |
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(f) A person whose certificate of registration has been |
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expired for one year or more may not renew the certificate. The |
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person may obtain a new certificate of registration by complying |
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with the requirements and procedures, including the examination |
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requirements, for an original certificate. |
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Sec. 1051.105. CONTINUING EDUCATION. The department shall |
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recognize continuing education programs for registrants under this |
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chapter. A person registered under this chapter must participate |
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in the programs to the extent required by the department to keep the |
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person's certificate of registration. |
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[Sections 1051.106-1051.150 reserved for expansion] |
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SUBCHAPTER D. DISCIPLINARY PROCEDURES |
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Sec. 1051.151. DENIAL OF CERTIFICATE; DISCIPLINARY ACTION. |
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The department shall deny an application for a certificate of |
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registration, suspend or revoke a certificate of registration, or |
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reprimand a person who is registered under this chapter if the |
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person: |
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(1) obtains a certificate of registration by means of |
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fraud, misrepresentation, or concealment of a material fact; |
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(2) sells, barters, or offers to sell or barter a |
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certificate of registration; |
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(3) violates a rule adopted by the executive |
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commissioner; or |
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(4) violates Section 1051.101. |
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Sec. 1051.152. INVESTIGATION. (a) The department shall |
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investigate: |
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(1) a person who engages in a practice that violates |
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this chapter; and |
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(2) each complaint filed with the department against a |
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person registered under this chapter. |
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(b) For a complaint related to collection and testing, the |
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department in conducting an investigation shall consult with a peer |
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review committee composed of collection service industry |
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professionals who are registered with the department under this |
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chapter and in good standing. |
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Sec. 1051.153. PROBATION. The department may place on |
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probation a person whose certificate of registration is suspended. |
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If the suspension is probated, the department may require the |
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person to: |
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(1) report regularly to the department on matters that |
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are the basis of the probation; |
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(2) limit practice to the areas prescribed by the |
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department; or |
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(3) continue or review professional education until |
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the person attains a degree of skill satisfactory to the department |
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in those areas that are the basis of the probation. |
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Sec. 1051.154. HEARING. (a) A person whose application for |
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a certificate of registration is denied, whose certificate of |
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registration is suspended or revoked, or who is reprimanded is |
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entitled to a hearing before the department if the person submits to |
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the department a written request for the hearing. |
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(b) A hearing is governed by department rules for a |
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contested hearing and by Chapter 2001, Government Code. |
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Sec. 1051.155. EMERGENCY SUSPENSION. (a) The department |
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shall temporarily suspend the certificate of registration of a |
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certificate holder if the department determines from the evidence |
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or information presented to it that continued practice by the |
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certificate holder would constitute a continuing and imminent |
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threat to the public welfare. |
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(b) A certificate of registration may be suspended under |
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this section without notice or hearing on the complaint if: |
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(1) action is taken to initiate proceedings for a |
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hearing before the State Office of Administrative Hearings |
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simultaneously with the temporary suspension; and |
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(2) a hearing is held as soon as practicable under this |
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chapter and Chapter 2001, Government Code. |
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(c) The State Office of Administrative Hearings shall hold a |
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preliminary hearing not later than the 14th day after the date of |
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the temporary suspension to determine if there is probable cause to |
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believe that a continuing and imminent threat to the public welfare |
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still exists. A final hearing on the matter shall be held not later |
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than the 61st day after the date of the temporary suspension. |
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[Sections 1051.156-1051.200 reserved for expansion] |
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SUBCHAPTER E. ADMINISTRATIVE PENALTY |
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Sec. 1051.201. IMPOSITION OF PENALTY. The department may |
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assess an administrative penalty against a person who violates this |
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chapter or a rule adopted under this chapter. |
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Sec. 1051.202. AMOUNT OF PENALTY. (a) The amount of the |
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administrative penalty may not exceed $1,000 for each violation. |
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Each day of a continuing violation is a separate violation. |
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(b) The amount shall be based on: |
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(1) the seriousness of the violation; |
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(2) the history of previous violations; |
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(3) the amount necessary to deter a future violation; |
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(4) efforts made to correct the violation; and |
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(5) any other matter that justice requires. |
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Sec. 1051.203. NOTICE OF VIOLATION AND PENALTY. If, after |
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investigation of a possible violation and the facts surrounding the |
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possible violation, the department determines that a violation |
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occurred, the department shall give written notice of the violation |
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to the person alleged to have committed the violation. The notice |
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must: |
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(1) include a brief summary of the alleged violation; |
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(2) state the amount of the proposed administrative |
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penalty based on the factors set forth in Section 1051.202(b); and |
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(3) inform the person of the person's right to a |
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hearing on the occurrence of the violation, the amount of the |
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penalty, or both. |
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Sec. 1051.204. PENALTY TO BE PAID OR HEARING REQUESTED. (a) |
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Not later than the 20th day after the date the person receives the |
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notice, the person may: |
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(1) accept the department's determination and proposed |
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administrative penalty; or |
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(2) make a written request for a hearing on that |
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determination. |
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(b) If the person accepts the department's determination, |
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the commissioner of public health or the commissioner's designee by |
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order shall approve the determination and assess the proposed |
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penalty. |
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Sec. 1051.205. HEARING. (a) If the person requests a |
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hearing in a timely manner, the department shall: |
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(1) set a hearing; |
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(2) give written notice of the hearing to the person; |
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and |
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(3) designate a hearings examiner to conduct the |
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hearing. |
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(b) The hearings examiner shall: |
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(1) make findings of fact and conclusions of law; and |
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(2) promptly issue to the commissioner of state health |
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services or the commissioner's designee a proposal for decision as |
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to the occurrence of the violation and the amount of any proposed |
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administrative penalty. |
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Sec. 1051.206. DECISION. (a) Based on the findings of |
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fact, conclusions of law, and proposal for decision, the |
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commissioner of state health services or the commissioner's |
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designee by order may determine that: |
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(1) a violation occurred and assess an administrative |
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penalty; or |
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(2) a violation did not occur. |
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(b) The department shall give notice of the order to the |
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person. The notice must include: |
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(1) separate statements of the findings of fact and |
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conclusions of law; |
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(2) the amount of any penalty assessed; and |
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(3) a statement of the person's right to judicial |
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review of the order. |
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Sec. 1051.207. OPTIONS FOLLOWING DECISION: PAY OR APPEAL. |
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(a) Not later than the 30th day after the date the order becomes |
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final, the person shall: |
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(1) pay the administrative penalty; |
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(2) pay the penalty and file a petition for judicial |
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review contesting the fact of the violation, the amount of the |
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penalty, or both; or |
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(3) without paying the penalty, file a petition for |
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judicial review contesting the fact of the violation, the amount of |
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the penalty, or both. |
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(b) Not later than the 30th day after the date the order is |
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final, a person who acts under Subsection (a)(3) may: |
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(1) stay enforcement of the penalty by: |
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(A) paying the penalty to the court for placement |
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in an escrow account; or |
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(B) giving to the court a supersedeas bond |
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approved by the court that: |
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(i) is for the amount of the penalty; and |
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(ii) is effective until judicial review of |
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the order is final; or |
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(2) request the court to stay enforcement of the |
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penalty by: |
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(A) filing with the court a sworn affidavit of |
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the person stating that the person is financially unable to pay the |
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penalty and is financially unable to give the supersedeas bond; and |
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(B) giving a copy of the affidavit to the |
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department by certified mail. |
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(c) If the department receives a copy of an affidavit under |
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Subsection (b)(2), the department may file with the court, not |
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later than the fifth day after the date the department receives the |
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copy, a contest to the affidavit. |
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(d) The court shall hold a hearing on the facts alleged in |
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the affidavit as soon as practicable and shall stay enforcement of |
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the penalty on finding that the alleged facts are true. The person |
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who files an affidavit has the burden of proving that the person is |
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financially unable to pay the amount of the penalty and to give a |
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supersedeas bond. |
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Sec. 1051.208. DETERMINATION BY COURT. (a) If the court |
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sustains the occurrence of the violation, the court may uphold or |
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reduce the amount of the administrative penalty and order the |
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person to pay the full or reduced penalty. |
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(b) If the court does not sustain the occurrence of the |
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violation, the court shall order that a penalty is not owed. |
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Sec. 1051.209. REMITTANCE OF PENALTY AND INTEREST. (a) If |
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after judicial review, the administrative penalty is reduced or not |
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imposed by the court, the court shall, after the judgment becomes |
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final: |
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(1) order that the appropriate amount, plus accrued |
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interest, be remitted to the person if the person paid the amount of |
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the penalty; or |
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(2) order the release of the bond in full if the |
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penalty is not imposed or order the release of the bond after the |
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person pays the penalty imposed if the person posted a supersedeas |
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bond. |
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(b) The interest paid under Subsection (a)(1) is the rate |
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charged on loans to depository institutions by the New York Federal |
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Reserve Bank. The interest shall be paid for the period beginning |
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on the date the penalty is paid and ending on the date the penalty is |
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remitted. |
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Sec. 1051.210. COLLECTION OF PENALTY. (a) In this section, |
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"reasonable expenses and costs" includes expenses incurred by the |
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department and the attorney general in the investigation, |
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initiation, or prosecution of an action, including reasonable |
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investigative costs, court costs, attorney's fees, witness fees, |
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and deposition expenses. |
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(b) If the person does not pay the amount of the |
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administrative penalty and the enforcement of the penalty is not |
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stayed, the department may refer the matter to the attorney general |
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for collection of the amount of the penalty. |
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(c) The department may assess reasonable expenses and costs |
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against a person in an administrative hearing if, as a result of the |
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hearing, an administrative penalty is assessed against the person. |
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The person shall pay expenses and costs assessed under this |
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subsection not later than the 30th day after the date the order of |
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the commissioner of state health services or the commissioner's |
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designee requiring the payment of expenses and costs is final. The |
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department may refer the matter to the attorney general for |
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collection of expenses and costs. |
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(d) If the attorney general brings an action against a |
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person to enforce an administrative penalty assessed under this |
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chapter and the person is found liable for an administrative |
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penalty, the attorney general may recover, on behalf of the |
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attorney general and the department, reasonable expenses and costs. |
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Sec. 1051.211. ADMINISTRATIVE PROCEDURE. A proceeding for |
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the assessment of an administrative penalty under this subchapter |
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is subject to Chapter 2001, Government Code. |
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[Sections 1051.212-1051.250 reserved for expansion] |
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SUBCHAPTER F. OTHER PENALTIES AND ENFORCEMENT PROVISIONS |
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Sec. 1051.251. ENFORCEMENT PROCEEDINGS; INJUNCTION. (a) |
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The department, the attorney general, or the district or county |
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attorney for the county in which an alleged violation of this |
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chapter occurs shall, on receipt of a verified complaint, bring an |
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appropriate administrative or judicial proceeding to enforce this |
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chapter or a rule adopted under this chapter. |
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(b) The attorney general or an attorney representing the |
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state may initiate an action for an injunction to prohibit a person |
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from violating this chapter or a rule adopted under this chapter. |
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Sec. 1051.252. CIVIL PENALTY. In addition to any other |
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remedy provided by law, including injunctive relief, a court may |
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impose a civil penalty for a violation of this chapter or a rule |
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adopted under this chapter. |
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SECTION 3. Not later than January 1, 2008: |
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(1) the executive commissioner of the Health and Human |
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Services Commission shall adopt the rules necessary to implement |
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Chapter 1051, Health and Safety Code, as added by this Act; and |
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(2) the Department of State Health Services shall |
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develop the application and establish the procedures necessary to |
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implement Chapter 1051, Health and Safety Code, as added by this |
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Act. |
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SECTION 4. (a) Except as provided by Subsection (b), this |
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Act takes effect September 1, 2007. |
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(b) Section 1051.101 and Subchapters D, E, and F, Health and |
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Safety Code, as added by this Act, take effect January 1, 2008. |