Chapter 7 - Subchapter O Flashcards
Sec. 1101.701.
Imposition of Administrative Penalty says that the commission may impose an administrative penalty on a person who violates this chapter or a rule adopted or order issued by the commission under this chapter.
The commission will periodically review the commission’s enforcement procedures and ensure that administrative penalty and disciplinary proceedings are combined into a single enforcement procedure.
The commission may combine a proceeding to impose an administrative penalty with another disciplinary proceeding, including a proceeding to suspend or revoke a license.
Sec. 1101.7015.
Delegation of Executive Director’s Authority states that the commission may authorize the Executive Director to delegate to another commission employee the Executive Director’s authority to act under this subchapter.
Sec. 1101.702.
Amount of Penalty says that the amount of an administrative penalty may not exceed $5,000 for each violation. Each day a violation continues or occurs may be considered a separate violation for purposes of imposing a penalty.
In determining the amount of the penalty, the Executive Director will consider all of the following:
⦁ The seriousness of the violation, including the nature, circumstances, extent, and gravity of the prohibited acts
⦁ The history of previous violations
⦁ The amount necessary to deter a future violation
⦁ Efforts to correct the violation
⦁ Any other matter that justice may require
Sec. 1101.703.
Notice of Violation and Penalty says that if, after investigation of a possible violation and the facts relating to that violation, the Executive Director determines that a violation has occurred, the Executive Director may issue a notice of violation stating:
⦁ a brief summary of the alleged violation.
⦁ the Executive Director’s recommendation on the imposition of the administrative penalty or another disciplinary sanction, including a recommendation on the amount of the penalty.
⦁ that the respondent has the right to a hearing to contest the alleged violation, the recommended penalty, or both.
Sec. 1101.704.
Penalty to be Paid or Hearing Requested says that within 20 days after the date the person receives the notice under Section 1101.703, the person may accept the Executive Director’s determination, including the recommended administrative penalty or request in writing a hearing on the occurrence of the violation, the amount of the penalty, or both.
If the person accepts the Executive Director’s determination, or fails to respond in a timely manner to the notice, the commission by order will approve the determination and order payment of the recommended penalty or impose the recommended sanction.
Sec. 1101.705.
Hearing, Decision says that if the person requests a hearing, the administrator must set a hearing and give notice of the hearing to the person.
An administrative law judge of the State Office of Administrative Hearings will conduct the hearing. The administrative law judge will make findings of fact and conclusions of law and promptly issue to the commission a proposal for decision regarding the occurrence of the violation and the amount of any proposed administrative penalty.
Based on the findings of fact, conclusions of law, and proposal for decision of the administrative law judge, the commission by order may determine that a violation occurred and impose an administrative penalty or a violation did not occur.
A proceeding under this section is subject to Chapter 2001, Government Code. The notice of the commission’s order given to the person under Chapter 2001, Government Code must include a statement of the person’s right to judicial review of the order.
Sec. 1101.706.
Notice of Order states that the administrator must give notice of the commission’s order to the person. The notice must do all of the following:
⦁ Include the findings of fact and conclusions of law, separately stated
⦁ State the amount of any penalty imposed
⦁ Inform the person of the person’s right to judicial review of the order
⦁ Include other information required by law
Sec. 1101.707.
Options Following Decision: Pay or Appeal says that within 30 days after the date the commission’s order becomes final, the person must pay the administrative penalty or file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both.
Within that same 30-day period, a person who files a petition for judicial review may do one of two things:
- Stay enforcement of the penalty by paying the penalty to the court for placement in an escrow account or giving the court a supersedeas bond in a form approved by the court that is for the amount of the penalty and is effective until judicial review of the order is final.
- Request the court to stay enforcement by filing with the court an affidavit stating that the person is financially unable to pay the penalty and is financially unable to give the supersedeas bond and giving a copy of the affidavit to the Executive Director by certified mail.
Sec. 1101.708.
Collection of Penalty states that if the person does not pay the administrative penalty and the enforcement of the penalty isn’t stayed, the Executive Director may refer the matter to the attorney general for collection of the penalty.
Sec. 1101.7085.
Determination by Court says that if the court sustains the determination that a violation occurred, the court may uphold or reduce the amount of the administrative penalty and order the person to pay the full or reduced amount of the penalty. If the court does not sustain the finding that a violation occurred, the court will order that a penalty isn’t owed.
Sec. 1101.709.
Remittance of Penalty and Interest says that if after judicial review the administrative penalty is reduced or isn’t upheld by the court, the court will remit the appropriate amount, plus accrued interest, to the person if the person paid the penalty.
In addition, this section says that:
- the interest accrues at the rate charged on loans to depository institutions by the New York Federal Reserve Bank.
- the interest will be paid for the period beginning on the date the penalty is paid and ending on the date the penalty is remitted.
- if the person gave a supersedeas bond and the penalty upheld by the court, the court will order, when the court’s judgment becomes final, the release of the bond.
- if the person gave a supersedeas bond and the amount of the penalty is reduced, the court will order the release of the bond after the person pays the reduced amount.
Sec. 1101.710.
Administrative Procedure states that any proceeding under this subchapter is subject to Chapter 2001, Government Code.
Sec. 1101.751.
Injunctive Action Brought by Commission says that in addition to any other action authorized by law, the commission may bring an action in its name to enjoin a violation of this chapter or a commission rule.
To obtain an injunction under this section, the commission isn’t required to allege or prove that an adequate remedy at law does not exist or substantial or irreparable damage would result from the continued violation.
Sec. 1101.752.
Additional Injunctive Authority says that in addition to any other action authorized by law, the commission, acting through the attorney general, may bring an action to abate a violation or enjoin a violation or potential violation of this chapter or a commission rule if the commission determines that a person has violated or is about to violate this chapter.
In addition, this section says that:
- the action will be brought in the name of the state in the district court in the county in which the violation occurred or is about to occur or the defendant resides.
- an injunctive action may be brought to abate or temporarily or permanently enjoin an act or to enforce this chapter.
Sec. 1101.753.
Civil Penalty for Certain Violations by Broker, Salesperson, or Certificate Holder describes the civil penalties a licensee may be subject to.
According to this section:
⦁ In addition to injunctive relief under Sections 1101.751 and 1101.752, a person who receives a commission or other consideration as a result of acting as a broker or salesperson without holding a license or certificate of registration under this chapter is liable to the state for a civil penalty of not less than the amount of money received or more than three times the amount of money received.
⦁ The commission may recover the civil penalty, court costs, and reasonable attorney’s fees on behalf of the state.
⦁ The commission isn’t required to give a bond in an action under this section, and court costs may not be recovered from the commission.
