2023 Texas Statutes › Health and Safety Code › Title 2 - Health › Subtitle G - Licenses and Other Regulation › Chapter 142 - Home and Community Support Services › Subchapter A. Home and Community Support Services License › Section 142.0173. Notice and Payment of Administrative Penalty; Judicial Review; Refund

Sec. 142.0173.  NOTICE AND PAYMENT OF ADMINISTRATIVE PENALTY;  JUDICIAL REVIEW;  REFUND.  (a)  The department shall give notice of the order under Section 142.0172(c) to the person alleged to have committed the violation.  The notice must include:
(1)  separate statements of the findings of fact and conclusions of law;
(2)  the amount of any penalty assessed;  and
(3)  a statement of the right of the person to judicial review of the order.
(b)  Not later than the 30th day after the date on which the decision is final as provided by Chapter 2001, Government Code, the person shall:
(1)  pay the penalty;
(2)  pay the amount of the penalty and file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty;  or
(3)  without paying the penalty, file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty.
(c)  Within the 30-day period, a person who acts under Subsection (b)(3) may:
(1)  stay enforcement of the penalty by:
(A)  paying the penalty to the court for placement in an escrow account;  or
(B)  giving to 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 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 amount of the penalty and is financially unable to give the supersedeas bond;  and
(B)  giving a copy of the affidavit to the department by certified mail.
(d)  If the department receives a copy of an affidavit under Subsection (c)(2), the department may file with the court, within 10 days after the date the copy is received, a contest to the affidavit.  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 and to give a supersedeas bond.
(e)  If the person does not pay the penalty and the enforcement of the penalty is not stayed, the department may refer the matter to the attorney general for collection of the penalty.
(f)  Judicial review of the order:
(1)  is instituted by filing a petition as provided by Subchapter G, Chapter 2001, Government Code;  and
(2)  is under the substantial evidence rule.
(g)  If the court sustains the occurrence of the violation, 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.  If the court does not sustain the occurrence of the violation, the court shall order that no penalty is owed.
(h)  When the judgment of the court becomes final, the court shall proceed under this subsection.  If the person paid the amount of the penalty under Subsection (b)(2) and if that amount is reduced or is not upheld by the court, the court shall order that the department pay the appropriate amount plus accrued interest to the person.  The rate of the interest is the rate charged on loans to depository institutions by the New York Federal Reserve Bank, and the interest shall be paid for the period beginning on the date the penalty was paid and ending on the date the penalty is remitted.  If the person paid the penalty under Subsection (c)(1)(A), or gave a supersedeas bond, and if the amount of the penalty is not upheld by the court, the court shall order the release of the escrow account or bond.  If the person paid the penalty under Subsection (c)(1)(A) and the amount of the penalty is reduced, the court shall order that the amount of the penalty be paid to the department from the escrow account and that the remainder of the account be released.  If the person gave a supersedeas bond and if the amount of the penalty is reduced, the court shall order the release of the bond after the person pays the amount.
Added by Acts 1997, 75th Leg., ch. 1191, Sec. 7, eff. Sept. 1, 1997.