SECTION 367.17. Administrative Penalty

(a) If the agency decides to pursue an administrative penalty, a Notice of Alleged Violation must be issued to the Respondent. This notice will include a brief summary of the alleged violation, state the amount of the administrative penalty pursued, and inform the Respondent of the Respondent's right to a hearing before the State Office of Administrative Hearings on the occurrence of the violation or the amount of the penalty. There is a rebuttable presumption that the notice is received three (3) days after it was mailed.

(b) Not later than the 20th day after the Notice of Alleged Violation is received by the Respondent, the Respondent, in writing, must:

(1) agree to settle the matter without a formal hearing before the State Office of Administrative Hearings and accept the determination and settlement penalty recommended by the agency staff; or

(2) make a request for a formal hearing before the State Office of Administrative Hearings on the occurrence of the violation, the amount of the penalty, or both.

(c) If, within twenty (20) days of receipt, the Respondent fails to respond to the Notice of Alleged Violation and either accept the the agency 'sdetermination and recommended administrative penalty, sanction, or both, or make a written request for a hearing on the determination, the staff may propose entry of a default order against the Respondent unless otherwise provided by applicable law.

(d) Where the Respondent fails to answer to the Notice of Alleged Violation, the staff may present to the Board a proposed Default Order containing findings of fact and conclusions of law. The Board may grant the relief recommended in the proposed Default Order, or such other relief as may be justified by the evidence presented.

(e) If the Respondent agrees to settle the matter without a formal hearing and accepts the determination and amount of penalty recommended by staff, the Respondent must pay the penalty to the Board according to an agreed schedule, or if there is no agreed schedule, not later than sixty (60) days following the date that the Notice of Alleged Violation was issued.

(f) The staff must report the proposed agreement to the Board stating a summary of the facts or allegations against the Respondent and the amount of the recommended administrative penalty. The Board may approve the proposed agreement and its recommended penalty by order. If the Respondent subsequently violates the Board's Order adopting the agreement by failing to pay the penalty timely, the Board may:

(1) refuse to renew the Respondent's license or registration;

(2) refuse to issue a new license or registration to the Respondent, under §1310.451 of the Plumbing License Law;

(3) revoke the Respondent's license or registration; and

(4) may sue the Respondent to collect the penalty owed under §1301.712 of the Plumbing License Law.

(g) The staff must set a formal hearing on the matter as a contested case before an administrative law judge at the State Office of Administrative Hearings if:

(1) the Respondent requests a formal hearing as required by subsection (b)(2) of this section;

(2) the parties do not agree to settle the matter as stated in subsection (e) of this section;

(3) the Board declines to approve the proposed agreement in subsection (f) of this section; or

(4) the Respondent attends at the time and place prescribed in the notice required by subsection (d) of the section.

(h) Following the hearing, the administrative law judge must issue a proposal for decision to the Board containing findings of facts and conclusions of law. The Board has the discretion to impose the sanction that best accomplishes the Board's legislatively-assigned enforcement goals. The Board is the ultimate arbiter of the proper penalty.

(i) The Board may impose an administrative penalty alone or in addition to other sanctions permitted under the Plumbing License Law.

(j) In determining the proper administrative penalty, the Board will apply the factors to be considered set forth in §1301.702(b) of the Plumbing License Law.

(k) The following table contains guidelines for the assessment of administrative penalties in disciplinary matters. This table is for standard violations under normal circumstances and does not necessarily include every possible violation of the Plumbing License Law or Board Rules. The table is divided into two classes of violations. Class A violations are those violations with greater potential to jeopardize public health, safety, welfare, property, or environment. Class B violations are those with less immediate potential to jeopardize public health, safety, welfare, property, or environment.

Attached Graphic

(l) The amounts specified in the table in subsection (k) of this section are guidelines only. The Board retains the right to increase or decrease the amount of an administrative penalty based on the circumstances in each case. In particular, the Board may increase the amount of administrative penalties when the Respondent has committed multiple violations (e.g., some combination of different violations).

(m) Because it is the policy of the Board to pursue expeditious resolution of complaints when appropriate, administrative penalties in uncontested cases may be less than the amounts specified in the table in subsection (k) of this section. Among other reasons, this may be because the Respondent admits fault, takes steps to rectify matters, timely responds to Board concerns, or identifies mitigating circumstances, and because settlements avoid additional administrative costs to the Board.

(n) The cost of preparing the transcript of an administrative hearing is not an administrative penalty. Yet in all cases where the Board has determined that a violation occurred, the Board assesses the cost of the transcript of the administrative hearing to the Respondent.

(o) Based on the proposal for decision, including the findings of fact and conclusions of law, the Board must issue an Order stating its decision in the contested case and a notice to the Respondent of the Respondent's right to judicial review of the Order.

(p) When the Default Order adopted under subsection (d) of this section or the Order adopted under subsection (o) of this section includes the imposition of an administrative penalty:

(1) not later than the 30th day after the date that the Default Order or Order becomes final:

(A) the Respondent must pay the penalty to the Board; or

(B) the Respondent must file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both, in accordance with §1301.707 or §1301.708 of the Plumbing License Law.

(2) after all opportunities for judicial review have passed and it is determined that the Respondent owes the penalty and fails to pay the penalty timely:

(A) the Board is authorized to refuse to renew the Respondent's license or registration and refuse to issue a new license or registration to the Respondent, under §1301.707 of the Plumbing License Law; and

(B) the Attorney General may sue the Respondent to collect the penalty under §1301.712 of the Plumbing License Law.

Source Note: The provisions of this §367.17 adopted to be effective August 29, 2018, 43 TexReg 5531; amended to be effective February 16, 2023, 48 TexReg 684