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A BILL TO BE ENTITLED
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AN ACT
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relating to the appeal through binding arbitration of a protest of |
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an appraisal review board order, and to related complaints filed by |
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a property owner and disciplinary action by the Board of Tax |
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Professional Examiners; providing penalties. |
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BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: |
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SECTION 1. Section 41A.08(b), Tax Code, as added by Chapter |
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372, Acts of the 79th Legislature, Regular Session, 2005, is |
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amended to read as follows: |
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(b) The parties to an arbitration proceeding under this |
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chapter may represent themselves or be represented in the |
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proceeding by an attorney, certified public accountant, [or by a] |
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property tax consultant, real estate appraiser, or real estate |
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broker [acting under power of attorney]. An employee of the |
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appraisal district may represent the appraisal district in the |
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arbitration proceeding. The property owner who is a party to the |
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arbitration proceeding may present evidence or make arguments in |
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the proceeding. A person other than the property owner may not |
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serve as a party representative, present evidence, or make |
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arguments in an arbitration proceeding under this chapter unless |
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the person: |
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(1) is an employee of the appraisal district; |
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(2) is a licensed attorney in this state; |
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(3) is licensed as a real estate broker or salesperson |
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under Chapter 1101, Occupations Code, or [is] licensed or certified |
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as a real estate appraiser under Chapter 1103, Occupations Code; |
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[or] |
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(4) is a property tax consultant registered under |
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Chapter 1152, Occupations Code; or |
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(5) is certified as a certified public accountant |
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under Chapter 901, Occupations Code. |
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SECTION 2. Section 41A.08, Tax Code, is amended by adding |
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Subsections (c) and (d) to read as follows: |
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(c) In an arbitration hearing under this chapter: |
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(1) any party is entitled to present evidence relating |
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to the data or appraisal method used by the appraisal district in |
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determining the market or appraised value of the property that is |
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the subject of the appeal, regardless of whether that evidence was |
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presented to the appraisal review board that determined the |
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protest; and |
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(2) the property owner is entitled to allege and |
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present evidence to show that the appraisal review board that |
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determined the protest failed to comply with: |
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(A) a provision of Subchapter C, Chapter 6, or |
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another law of this state applicable to the board; |
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(B) a rule adopted by the comptroller applicable |
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to the board or the hearing conducted by the board; or |
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(C) any other substantive or procedural |
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requirement applicable to the hearing conducted by the board. |
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(d) If the property owner presents evidence under |
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Subsection (c)(2), the arbitrator shall: |
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(1) make a determination whether the appraisal review |
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board failed to comply with the statute, rule, or procedural |
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requirement as alleged by the property owner; and |
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(2) include that determination in the record of the |
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hearing. |
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SECTION 3. Section 41A.11, Tax Code, is amended to read as |
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follows: |
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Sec. 41A.11. POST APPEAL ADMINISTRATIVE AND COMPLAINT |
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PROCEDURES; DISCIPLINARY ACTION. (a) An arbitration award under |
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this chapter is considered to be a final determination of an appeal |
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for purposes of Subchapter C, Chapter 42. |
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(b) A property owner may not appeal an arbitration award |
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under this chapter to the Board of Tax Professional Examiners. |
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(c) A property owner who alleges that a chief appraiser |
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violated a procedural or ethical provision or rule enacted or |
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adopted under this title may file a complaint with the Board of Tax |
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Professional Examiners under Chapter 1151, Occupations Code. |
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(d) The board shall investigate a complaint filed against a |
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chief appraiser under Subsection (c) and may impose any |
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disciplinary action authorized under Section 1151.202, Occupations |
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Code, for a violation of this title. |
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SECTION 4. Section 1151.202, Occupations Code, is amended |
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by adding Subsections (a-1) and (a-2) to read as follows: |
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(a-1) For a violation of Title 1, Tax Code, the board may: |
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(1) deny, suspend, or revoke a registration of a |
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person; |
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(2) place on probation a person whose registration has |
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been suspended; |
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(3) administer a public reprimand of a person for a |
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violation by the person; |
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(4) stipulate periodic board review of the person; |
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(5) require the person to successfully complete |
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additional continuing education; or |
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(6) assess an administrative penalty under Subchapter |
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G. |
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(a-2) In addition to any disciplinary action authorized by |
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Subsection (a-1) for a violation of Title 1, Tax Code, the board may |
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issue a written reprimand to the registration holder or require the |
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holder to participate in continuing education programs in which the |
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board specifies the courses to be completed and the number of hours |
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required. |
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SECTION 5. Subchapter E, Chapter 1151, Occupations Code, is |
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amended by adding Section 1151.2021 to read as follows: |
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Sec. 1151.2021. SCHEDULE OF SANCTIONS. (a) The board by |
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rule shall adopt a schedule of the disciplinary sanctions that the |
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board may impose under this chapter. In adopting the schedule of |
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sanctions, the board shall ensure that the severity of the sanction |
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imposed is appropriate to the type of violation or conduct that is |
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the basis for disciplinary action. |
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(b) In determining the appropriate disciplinary action, |
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including the amount of any administrative penalty to assess, the |
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board shall consider: |
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(1) whether the person is being disciplined for |
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multiple violations of either this chapter or Title 1, Tax Code, or |
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a rule or order adopted under this chapter; |
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(2) whether the person has previously been the subject |
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of disciplinary action by the board and has previously complied |
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with board rules and this chapter; |
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(3) the seriousness of the violation; |
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(4) the threat to public safety; and |
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(5) any mitigating factors. |
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SECTION 6. Chapter 1151, Occupations Code, is amended by |
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adding Subchapter G to read as follows: |
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SUBCHAPTER G. ADMINISTRATIVE PENALTY |
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Sec. 1151.301. IMPOSITION OF PENALTY. The board may impose |
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an administrative penalty against a person who violates this |
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chapter, a rule adopted under this chapter, or Title 1, Tax Code. |
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Sec. 1151.302. 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 of the penalty 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 may require. |
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Sec. 1151.303. NOTICE OF VIOLATION AND PENALTY. (a) If, |
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after investigating a possible violation and the facts surrounding |
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that possible violation, the board determines that a violation |
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occurred, the board shall give written notice of the violation to |
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the person alleged to have committed the violation. |
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(b) The notice 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; 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. 1151.304. 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 board's determination, including the |
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proposed 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 board's determination, the |
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executive director or that executive director's designee by order |
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shall approve the determination and impose the proposed penalty. |
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Sec. 1151.305. HEARING. (a) If the person timely requests |
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a hearing, the board 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 make findings of fact and |
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conclusions of law and promptly issue to the executive director or |
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that executive director's designee a proposal for decision as to |
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the occurrence of the violation and the amount of any proposed |
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administrative penalty. |
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Sec. 1151.306. DECISION BY EXECUTIVE DIRECTOR. (a) Based |
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on the findings of fact and conclusions of law and the |
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recommendations of the hearings examiner, the executive director or |
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the executive director's designee by order may determine that: |
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(1) a violation has occurred and may impose an |
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administrative penalty; or |
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(2) a violation did not occur. |
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(b) The board shall give notice of the order to the person. |
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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 imposed; and |
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(3) a statement of the right of the person to judicial |
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review of the order. |
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Sec. 1151.307. OPTIONS FOLLOWING DECISION: PAY OR APPEAL. |
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(a) Not later than the 30th day after the date on which the order |
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becomes 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 occurrence of the violation, the amount of |
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the 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 occurrence of the violation, the |
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amount of the penalty, or both. |
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(b) Within the 30-day period, a person who acts under |
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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 that |
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is approved by the court for the amount of the penalty and that is |
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effective until all judicial review of 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 board by |
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certified mail. |
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(c) If the board receives a copy of an affidavit as provided |
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by Subsection (b)(2), the board may file with the court a contest to |
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the affidavit not later than the fifth day after the date the copy |
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is received. |
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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 the enforcement |
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of the penalty on finding that the alleged facts are true. The |
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person who files an affidavit has the burden of proving that the |
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person is financially unable to pay the penalty and to give a |
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supersedeas bond. |
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Sec. 1151.308. COLLECTION OF PENALTY. If the person does |
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not pay the administrative penalty and the enforcement of the |
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penalty is not stayed, the board may refer the matter to the |
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attorney general for collection. |
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Sec. 1151.309. DETERMINATION BY COURT. (a) If the court |
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sustains the determination that a violation occurred, the court may |
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uphold or reduce the amount of the administrative penalty and order |
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the person to pay the full or reduced amount. |
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(b) If the court does not sustain the determination that a |
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violation occurred, the court shall order that a penalty is not |
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owed. |
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Sec. 1151.310. 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 the appropriate amount, plus accrued |
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interest, be remitted to the person by the board if the person paid |
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the penalty under Section 1151.307(a)(2); or |
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(2) if the person paid the penalty under Section |
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1151.307(b)(1)(A) or posted a supersedeas bond, order the board to: |
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(A) execute a complete release of the escrow |
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account or bond, as appropriate, if the penalty is not imposed; or |
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(B) release the escrow account or bond, as |
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appropriate, after the reduced penalty has been paid from the |
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account or by the person. |
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(b) The interest paid under Subsection (a)(1) is accrued at |
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the rate charged on loans to depository institutions by the New York |
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Federal Reserve Bank. The interest shall be paid for the period |
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beginning on the date the penalty is paid and ending on the date the |
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penalty is remitted. |
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Sec. 1151.311. EXPENSES AND COSTS. (a) In this section, |
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"reasonable expenses and costs" includes expenses incurred by the |
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board and the attorney general in the investigation, initiation, or |
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prosecution of an action, including reasonable investigative |
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costs, court costs, attorney's fees, witness fees, and deposition |
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expenses. |
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(b) The board 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 executive director or that executive director's designee |
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requiring the payment of expenses and costs is final. The board may |
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refer the matter to the attorney general for collection of the |
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expenses and costs. |
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(c) 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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subchapter 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 board, reasonable expenses and costs. |
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Sec. 1151.312. ADMINISTRATIVE PROCEDURE. A proceeding |
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under this subchapter is subject to Chapter 2001, Government Code. |
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SECTION 7. Section 41A.08(b), Tax Code, as added by Chapter |
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912, Acts of the 79th Legislature, Regular Session, 2005, is |
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repealed. |
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SECTION 8. The change in law made by this Act applies only |
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to a penalty assessed on or after the effective date of this Act. A |
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penalty assessed before that date is governed by the law in effect |
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immediately before that date, and that law is continued in effect |
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for that purpose. |
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SECTION 9. This Act takes effect immediately if it receives |
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a vote of two-thirds of all the members elected to each house, as |
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provided by Section 39, Article III, Texas Constitution. If this |
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Act does not receive the vote necessary for immediate effect, this |
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Act takes effect September 1, 2007. |