CHAPTER 781. PERSONAL EMERGENCY RESPONSE SYSTEMS
HEALTH AND SAFETY CODE
TITLE 9. SAFETY
SUBTITLE B. EMERGENCIES
CHAPTER 781. PERSONAL EMERGENCY RESPONSE SYSTEMS
SUBCHAPTER A. GENERAL PROVISIONS
Sec. 781.001. DEFINITIONS. In this chapter:
(1) "Alarm system" means electronic equipment and devices
designed to act as a personal emergency response system.
(2) "Branch office" means an office that:
(A) is identified to the public as a place from which business
is conducted, solicited, or advertised; and
(B) is at a place other than the principal place of business as
shown in department records.
(3) "Commissioner" means the executive commissioner of the
Health and Human Services Commission.
(4) "Department" means the Department of State Health Services.
(5) "Manager" means an officer or supervisor of a corporation or
a general partner of a partnership who manages a personal
emergency response system provider.
(6) "Personal emergency response system" means an alarm system
that is:
(A) installed in the residence of a person;
(B) monitored by an alarm systems company;
(C) designed only to permit the person to signal the occurrence
of a medical or personal emergency on the part of the person so
that the company may dispatch appropriate aid; and
(D) not part of a combination of alarm systems that includes a
burglar alarm or fire alarm.
Added by Acts 2005, 79th Leg., Ch.
808, Sec. 9, eff. September 1, 2005.
SUBCHAPTER B. POWERS AND DUTIES OF DEPARTMENT
Sec. 781.051. GENERAL POWERS AND DUTIES. (a) The department
shall perform the functions and duties provided by this chapter.
(b) The commissioner shall adopt rules necessary to administer
this chapter.
(c) The commissioner shall establish fees necessary to
administer this chapter, including fees for processing and
issuing or renewing a license or registration under this chapter.
(d) The commissioner shall prescribe forms required by this
chapter.
Added by Acts 2005, 79th Leg., Ch.
808, Sec. 9, eff. September 1, 2005.
SUBCHAPTER C. LICENSING
Sec. 781.101. PERSONAL EMERGENCY RESPONSE SYSTEM PROVIDER
LICENSE REQUIRED. Unless the person holds a license issued under
this chapter, a person may not act as or perform the services of
a personal emergency response system provider.
Added by Acts 2005, 79th Leg., Ch.
808, Sec. 9, eff. September 1, 2005.
Sec. 781.102. PERSONAL EMERGENCY RESPONSE SYSTEM PROVIDER. A
person acts as a personal emergency response system provider for
the purposes of this chapter if the person sells, installs,
services, monitors, or responds to a personal emergency response
system.
Added by Acts 2005, 79th Leg., Ch.
808, Sec. 9, eff. September 1, 2005.
Sec. 781.103. APPLICATION FOR LICENSE. An application for a
license under this chapter must be in the form prescribed by the
commissioner and include:
(1) the full name and business address of the applicant;
(2) the name under which the applicant intends to do business;
(3) a statement as to the general nature of the business in
which the applicant intends to engage;
(4) if the applicant is an entity other than an individual, the
full name and residence address of each partner, officer, and
director of the applicant, and of the applicant's manager;
(5) a verified statement of the applicant's experience
qualifications;
(6) a report from the Department of Public Safety stating the
applicant's record of any convictions for a Class B misdemeanor
or equivalent offense or a greater offense;
(7) the social security number of the individual making the
application; and
(8) other information, evidence, statements, or documents
required by the department.
Added by Acts 2005, 79th Leg., Ch.
808, Sec. 9, eff. September 1, 2005.
Sec. 781.104. ISSUANCE OF BRANCH OFFICE LICENSE. (a) A license
holder shall notify the department in writing of the
establishment of a branch office and file in writing with the
department the address of the branch office.
(b) On application by a license holder, the department shall
issue a branch office license.
Added by Acts 2005, 79th Leg., Ch.
808, Sec. 9, eff. September 1, 2005.
Sec. 781.105. FORM OF LICENSE. The commissioner shall prescribe
the form of a license, including a branch office license. The
license must include:
(1) the name of the license holder;
(2) the name under which the license holder is to operate; and
(3) the license number and the date the license was issued.
Added by Acts 2005, 79th Leg., Ch.
808, Sec. 9, eff. September 1, 2005.
Sec. 781.106. GENERAL QUALIFICATIONS FOR LICENSE. (a) An
applicant for a license or the applicant's manager must be at
least 18 years of age and must not:
(1) have been convicted in any jurisdiction of a Class A
misdemeanor or equivalent offense or a greater offense, unless a
full pardon has been granted for reasons relating to a wrongful
conviction;
(2) have been convicted in any jurisdiction of a Class B
misdemeanor or equivalent offense for which the fifth anniversary
of the date of conviction has not occurred before the date of
application, unless a full pardon has been granted for reasons
relating to a wrongful conviction;
(3) have been found by a court to be incompetent by reason of a
mental defect or disease and not have been restored to
competency;
(4) be suffering from habitual drunkenness or from narcotics
addiction or dependence; or
(5) have been discharged from the United States armed forces
under other than honorable conditions.
(b) The department may deny an application for a license if the
applicant has been convicted in any jurisdiction of a Class B
misdemeanor or equivalent offense if the fifth anniversary of the
date of conviction has occurred before the date of application,
unless a full pardon has been granted for reasons relating to a
wrongful conviction.
Added by Acts 2005, 79th Leg., Ch.
808, Sec. 9, eff. September 1, 2005.
Sec. 781.107. MANAGER REQUIRED. (a) A license holder's
business shall be operated under the direction and control of one
manager. A license holder may not apply to designate more than
one individual to serve as manager of the license holder's
business.
(b) An individual may not act as a manager until the individual
has made a satisfactory showing to the department that the
individual:
(1) satisfies the requirements of Section 781.106; and
(2) has not engaged in conduct regarding a violation or
conviction that is grounds for disciplinary action under Section
781.351.
Added by Acts 2005, 79th Leg., Ch.
808, Sec. 9, eff. September 1, 2005.
Sec. 781.108. INSURANCE. (a) A license holder shall maintain
on file with the department at all times the certificate of
insurance required by this chapter.
(b) The department shall immediately suspend the license of a
license holder who violates Subsection (a).
(c) The department may rescind the license suspension if the
license holder provides proof to the department that the
insurance coverage is still in effect. The license holder must
provide the proof in a form satisfactory to the department not
later than the 10th day after the date the license is suspended.
(d) After suspension of the license, the department may not
reinstate the license until an application, in the form
prescribed by the commissioner, is filed accompanied by a proper
insurance certificate. The department may deny the application
notwithstanding the applicant's compliance with this section:
(1) for a reason that would justify suspending, revoking, or
denying a license; or
(2) if, during the suspension, the applicant performs a practice
for which a license is required.
Added by Acts 2005, 79th Leg., Ch.
808, Sec. 9, eff. September 1, 2005.
Sec. 781.109. INSURANCE REQUIREMENT. (a) The department may
not issue a license unless the applicant files with the
department:
(1) evidence of a general liability insurance policy on a
certificate of insurance form prescribed by the Texas Department
of Insurance and countersigned by an insurance agent licensed in
this state; or
(2) a certificate of insurance for surplus lines coverage
obtained under Chapter 981, Insurance Code, through a licensed
Texas surplus lines agent resident in this state.
(b) The general liability insurance policy must be conditioned
to pay on behalf of the license holder damages that the license
holder becomes legally obligated to pay because of bodily injury,
property damage, or personal injury, caused by an event involving
the principal, or an officer, agent, or employee of the
principal, in the conduct of any business licensed under this
chapter.
(c) The insurance policy must contain minimum limits of:
(1) $100,000 for each occurrence for bodily injury and property
damage;
(2) $50,000 for each occurrence for personal injury; and
(3) a total aggregate amount of $200,000 for all occurrences.
(d) An insurance certificate executed and filed with the
department under this chapter remains in effect until the insurer
terminates future liability by providing to the department at
least 10 days' notice of the intent to terminate liability.
Added by Acts 2005, 79th Leg., Ch.
808, Sec. 9, eff. September 1, 2005.
Sec. 781.110. LICENSE HOLDER EXEMPTIONS FROM CERTAIN LOCAL
REGULATIONS. (a) A license holder or an employee of a license
holder is not required to obtain an authorization, permit,
franchise, or license from, pay another fee or franchise tax to,
or post a bond in a municipality, county, or other political
subdivision of this state to engage in business or perform a
service authorized under this chapter.
(b) A municipality, county, or other political subdivision of
this state may not require a payment for the use of municipal,
county, or other public facilities in connection with a business
or service provided by a license holder, except that a
municipality may impose and collect:
(1) a reasonable charge for the use of a central alarm
installation located in a police office that is owned, operated,
or monitored by the municipality; and
(2) reasonable inspection and reinspection fees in connection
with a device that causes at least five false alarms in a
12-month period.
(c) A municipality may require, until the device is repaired to
the satisfaction of the appropriate municipal official,
discontinuation of service of an alarm signal device that,
because of mechanical malfunction or faulty equipment, causes at
least five false alarms in a 12-month period.
(d) For the purposes of Subsection (c), a false alarm caused by
human error or an act of God is not considered a mechanical
malfunction or faulty equipment.
Added by Acts 2005, 79th Leg., Ch.
808, Sec. 9, eff. September 1, 2005.
SUBCHAPTER D. REGISTRATION REQUIREMENTS
Sec. 781.151. REGISTRATION REQUIRED. An individual must
register with the department if the individual:
(1) is employed as an alarm systems company, alarm systems
installer, manager or branch office manager, or security
salesperson who enters a client's residence at any time while
performing the salesperson's responsibilities; or
(2) is an owner, officer, partner, or shareholder of a license
holder and is responsible for managing the business of the
license holder.
Added by Acts 2005, 79th Leg., Ch.
808, Sec. 9, eff. September 1, 2005.
Sec. 781.152. ALARM SYSTEMS INSTALLER. An individual acts as an
alarm systems installer for purposes of this chapter if the
individual installs, maintains, or repairs a personal emergency
response system.
Added by Acts 2005, 79th Leg., Ch.
808, Sec. 9, eff. September 1, 2005.
Sec. 781.153. ALARM SYSTEMS MONITOR. (a) An individual acts as
an alarm systems monitor for purposes of this chapter if the
individual monitors a personal emergency response system.
(b) This section does not apply to an individual employed
exclusively and regularly by an employer, other than a license
holder, in connection with the affairs of that employer and with
whom the individual has an employee-employer relationship.
Added by Acts 2005, 79th Leg., Ch.
808, Sec. 9, eff. September 1, 2005.
Sec. 781.154. SECURITY SALESPERSON. An individual acts as a
security salesperson for purposes of this chapter if the
individual:
(1) is employed by a security services contractor to sell
services offered by the contractor; and
(2) enters a client's residence at any time during the person's
employment.
Added by Acts 2005, 79th Leg., Ch.
808, Sec. 9, eff. September 1, 2005.
Sec. 781.155. QUALIFICATIONS FOR REGISTRATION. (a) An
individual must be at least 18 years of age to be registered.
(b) The department by rule may adopt additional qualifications
for an individual to be registered under this subchapter.
Added by Acts 2005, 79th Leg., Ch.
808, Sec. 9, eff. September 1, 2005.
Sec. 781.156. APPLICATION FOR REGISTRATION. (a) An application
for registration must be verified and include:
(1) the applicant's full name, residence address, residence
telephone number, date and place of birth, and social security
number;
(2) a statement that:
(A) lists each name used by the applicant, other than the name
by which the applicant is known at the time of application, and
an explanation stating each place where each name was used, the
date of each use, and a full explanation of the reasons the name
was used; or
(B) states that the applicant has never used a name other than
the name by which the applicant is known at the time of
application;
(3) the name and address of the applicant's employer and, if
applicable, the applicant's consulting firm;
(4) the date the employment commenced;
(5) a letter from the license holder requesting that the
applicant be registered;
(6) the title of the position occupied by the applicant and a
description of the applicant's duties; and
(7) any other information, evidence, statement, or document
required by the department.
(b) The employer of the applicant shall make a reasonable
attempt to verify the information required under Subsection
(a)(1).
Added by Acts 2005, 79th Leg., Ch.
808, Sec. 9, eff. September 1, 2005.
SUBCHAPTER E. GENERAL PROVISIONS APPLICABLE TO REGULATED PERSONS
Sec. 781.201. CRIMINAL HISTORY CHECK. (a) The department shall
conduct a criminal history check, including a check of any
criminal history record information maintained by the Department
of Public Safety, that relates to each applicant for a license or
registration. An applicant is not eligible for a license or
registration if the check reveals that the applicant has
committed an act that constitutes grounds for the denial of the
license or registration.
(b) A license or registration issued by the department is
conditional on the department's receipt of criminal history
record information.
Added by Acts 2005, 79th Leg., Ch.
808, Sec. 9, eff. September 1, 2005.
Sec. 781.202. ALARM SYSTEMS RECORDS CONFIDENTIAL. Information
contained in alarm systems records maintained by a governmental
body that concerns the location of an alarm system, the name of
the occupant of an alarm system location, or the type of alarm
system used is confidential and may be disclosed only to the
department or as otherwise required by state law or court order.
Added by Acts 2005, 79th Leg., Ch.
808, Sec. 9, eff. September 1, 2005.
Sec. 781.203. FALSE REPRESENTATION. A person may not represent
falsely that the person:
(1) is employed by a license holder; or
(2) is licensed or registered under this chapter.
Added by Acts 2005, 79th Leg., Ch.
808, Sec. 9, eff. September 1, 2005.
Sec. 781.204. PROHIBITION AGAINST CERTAIN POLITICAL SUBDIVISIONS
ACTING AS ALARM SYSTEMS COMPANY. (a) Except as provided by
Subsection (b), a political subdivision may not offer alarm
system sales, service, installation, or monitoring unless it was
providing monitoring services to residences within the boundaries
of the political subdivision on September 1, 1999. Any fee
charged by the political subdivision may not exceed the cost of
the monitoring.
(b) A political subdivision may:
(1) offer service, installation, or monitoring for property
owned by the political subdivision or another political
subdivision;
(2) allow for the response of an alarm or detection device by a
law enforcement agency or by a law enforcement officer acting in
an official capacity;
(3) offer monitoring in connection with a criminal
investigation; or
(4) offer monitoring to a financial institution, as defined by
Section 201.101, Finance Code, that requests, in writing, that
the political subdivision provide monitoring service to the
financial institution.
(c) The limitations of Subsection (a) do not apply to a
political subdivision in a county with a population of less than
80,000 or to a political subdivision where monitoring is not
otherwise provided or available.
Added by Acts 2005, 79th Leg., Ch.
808, Sec. 9, eff. September 1, 2005.
SUBCHAPTER F. EXPIRATION; RENEWAL
Sec. 781.251. EXPIRATION. (a) A license is valid for two years
from the date of issuance. A license expires at midnight on the
last day of the 23rd month after the month in which it is issued.
(b) Registration as a manager, branch office manager, alarm
systems installer, or security salesperson expires on the second
anniversary of the date of registration.
(c) Registration as an owner, officer, partner, or shareholder
of a license holder expires on the second anniversary of the date
of registration.
Added by Acts 2005, 79th Leg., Ch.
808, Sec. 9, eff. September 1, 2005.
Sec. 781.252. LICENSE RENEWAL. (a) A person who is otherwise
eligible to renew a license may renew an unexpired license by
paying the required renewal fee to the department before the
expiration date of the license. A person whose license has
expired may not engage in activities that require a license until
the license has been renewed.
(b) A person whose license has been expired for 90 days or less
may renew the license by paying to the department a renewal fee
that is equal to 1-1/2 times the normally required renewal fee.
(c) A person whose license has been expired for longer than 90
days but less than one year may renew the license by paying to
the department a renewal fee that is equal to two times the
normally required renewal fee.
(d) A person whose license has been expired for one year or more
may not renew the license. The person may obtain a new license
by complying with the requirements and procedures for obtaining
an original license.
(e) Not later than the 30th day before the date a person's
license is scheduled to expire, the department shall send written
notice of the impending expiration to the person at the person's
last known address according to the department's records.
Added by Acts 2005, 79th Leg., Ch.
808, Sec. 9, eff. September 1, 2005.
Sec. 781.253. RENEWAL OF EXPIRED LICENSE BY OUT-OF-STATE
PRACTITIONER. A person who was licensed in this state, moved to
another state, and is currently licensed and has been in practice
in the other state for the two years preceding the date the
person applies for renewal may obtain a new license. The person
must pay to the department a fee that is equal to two times the
normally required renewal fee for the license.
Added by Acts 2005, 79th Leg., Ch.
808, Sec. 9, eff. September 1, 2005.
Sec. 781.254. STAGGERED RENEWAL; PRORATION OF LICENSE FEE. The
department by rule may adopt a system under which licenses expire
on various dates during the year. For the year in which the
expiration date of a license is changed, the department shall
prorate license fees on a monthly basis so that each license
holder pays only that portion of the license fee that is
allocable to the number of months during which the license is
valid. On renewal of the license on the new expiration date, the
total license renewal fee is payable.
Added by Acts 2005, 79th Leg., Ch.
808, Sec. 9, eff. September 1, 2005.
Sec. 781.255. EFFECT OF LICENSE RENEWAL ON DISCIPLINARY ACTION.
Renewal of a license does not prohibit the bringing of a
disciplinary proceeding for an act committed before the effective
date of the renewal.
Added by Acts 2005, 79th Leg., Ch.
808, Sec. 9, eff. September 1, 2005.
Sec. 781.256. EFFECT OF SUSPENSION ON LICENSE RENEWAL
REQUIREMENTS. A suspended license expires on the license's
expiration date and may be renewed as provided by this chapter.
The renewal does not entitle the license holder, while the
license remains suspended and until the license is reinstated, to
engage in the licensed activity or in conduct in violation of the
order or judgment by which the license was suspended.
Added by Acts 2005, 79th Leg., Ch.
808, Sec. 9, eff. September 1, 2005.
Sec. 781.257. REGISTRATION RENEWAL. (a) An individual who is
otherwise eligible to renew a registration may renew an unexpired
registration by paying the required renewal fee to the department
before the expiration date of the registration. An individual
whose registration has expired may not engage in activities that
require a registration until the registration has been renewed.
(b) An individual whose registration has been expired for 90
days or less may renew the registration by paying to the
department a renewal fee that is equal to 1-1/2 times the
normally required renewal fee.
(c) An individual whose registration has been expired for more
than 90 days but less than one year may renew the registration by
paying to the department a renewal fee that is equal to two times
the normally required renewal fee.
(d) An individual whose registration has been expired for one
year or more may not renew the registration. The individual may
obtain a new registration by complying with the requirements and
procedures for obtaining an original registration.
(e) An individual who was registered in this state, moved to
another state, and is currently registered and has been in
practice in the other state for the two years preceding the date
of application may obtain a new registration. The individual
must pay to the department a fee that is equal to two times the
normally required renewal fee for the registration.
(f) Not later than the 30th day before the expiration date of an
individual's registration, the department shall send written
notice of the impending expiration to the individual at the
individual's last known address according to department records.
Added by Acts 2005, 79th Leg., Ch.
808, Sec. 9, eff. September 1, 2005.
Sec. 781.258. CONTINUING EDUCATION. (a) The department may
recognize, prepare, or administer continuing education programs
for license holders and registrants. The department shall set
the minimum number of hours that must be completed and the types
of programs that may be offered.
(b) A license holder or registrant must participate in the
programs to the extent required by the department to keep the
person's license or registration. A license holder or registrant
shall submit evidence of compliance with the department's
continuing education requirements in a manner prescribed by the
department.
Added by Acts 2005, 79th Leg., Ch.
808, Sec. 9, eff. September 1, 2005.
SUBCHAPTER G. EXCEPTIONS
Sec. 781.301. GOVERNMENT EMPLOYEES. This chapter does not apply
to an officer or employee of the United States, this state, or a
political subdivision of this state while the officer or employee
is performing official duties.
Added by Acts 2005, 79th Leg., Ch.
808, Sec. 9, eff. September 1, 2005.
Sec. 781.302. LAW ENFORCEMENT PERSONNEL. This chapter does not
apply to:
(1) a person who has full-time employment as a peace officer and
who receives compensation for private employment on an individual
or an independent contractor basis as a patrolman, guard, extra
job coordinator, or watchman if the officer:
(A) is employed in an employee-employer relationship or employed
on an individual contractual basis;
(B) is not in the employ of another peace officer;
(C) is not a reserve peace officer; and
(D) works as a peace officer on the average of at least 32 hours
a week, is compensated by the state or a political subdivision of
the state at least at the minimum wage, and is entitled to all
employee benefits offered to a peace officer by the state or
political subdivision;
(2) a reserve peace officer while the reserve officer is
performing guard, patrolman, or watchman duties for a county and
is being compensated solely by that county;
(3) a peace officer acting in an official capacity in responding
to a burglar alarm or detection device; or
(4) a person engaged in the business of electronic monitoring of
an individual as a condition of that individual's community
supervision, parole, mandatory supervision, or release on bail,
if the person does not perform any other service that requires a
license under this chapter.
Added by Acts 2005, 79th Leg., Ch.
808, Sec. 9, eff. September 1, 2005.
Sec. 781.303. MEDICAL ALERT SERVICES. This chapter does not
apply to an entity that is a hospital or a wholly owned
subsidiary or an affiliate of a hospital licensed under Chapter
241.
Added by Acts 2005, 79th Leg., Ch.
808, Sec. 9, eff. September 1, 2005.
SUBCHAPTER H. DISCIPLINARY PROCEDURES
Sec. 781.351. GROUNDS FOR DISCIPLINARY ACTION. (a) For a
violation of this chapter or a rule adopted under this chapter,
the department may:
(1) revoke or suspend the person's license or registration;
(2) place on probation the person if the person's license or
registration has been suspended; or
(3) reprimand the license holder or registrant.
(b) The department shall take disciplinary action described by
Subsection (a) on proof:
(1) that the applicant, license holder, or registrant has:
(A) violated this chapter or a department rule adopted under
this chapter;
(B) been convicted of a Class B misdemeanor or equivalent
offense if the fifth anniversary of the date of the conviction
has occurred;
(C) engaged in fraud, deceit, or misrepresentation; or
(D) made a material misstatement in an application for or
renewal of a license or registration; or
(2) that the license holder of a registrant has submitted to the
department sufficient evidence that the registrant:
(A) engaged in fraud or deceit while employed by the license
holder; or
(B) committed theft while performing work as a registrant.
Added by Acts 2005, 79th Leg., Ch.
808, Sec. 9, eff. September 1, 2005.
Sec. 781.352. HEARING. (a) If the department proposes to
revoke or suspend a person's license or registration, the person
is entitled to a hearing before a hearings officer appointed by
the State Office of Administrative Hearings.
(b) The commissioner shall prescribe procedures for appealing to
the department a decision to revoke or suspend a license or
registration.
Added by Acts 2005, 79th Leg., Ch.
808, Sec. 9, eff. September 1, 2005.
Sec. 781.353. ADMINISTRATIVE PROCEDURE. A proceeding under this
chapter to suspend or revoke a license or registration is
governed by Chapter 2001, Government Code.
Added by Acts 2005, 79th Leg., Ch.
808, Sec. 9, eff. September 1, 2005.
Sec. 781.354. PROBATION. The department may require a person
whose license or registration suspension is probated to:
(1) report regularly to the department on matters that are the
basis of the probation;
(2) limit practice to areas prescribed by the department; or
(3) continue the person's professional education until the
license or registration holder attains a degree of skill
satisfactory to the department in those areas that are the basis
of the probation.
Added by Acts 2005, 79th Leg., Ch.
808, Sec. 9, eff. September 1, 2005.
Sec. 781.355. EFFECT OF SUSPENSION; MONITORING OF EXISTING ALARM
CONTRACTS. Subject to expiration of the license under Section
781.251, a license holder may continue to monitor under an
existing alarm contract or contract to monitor under an existing
alarm contract for 30 days after the date of suspension of the
person's license.
Added by Acts 2005, 79th Leg., Ch.
808, Sec. 9, eff. September 1, 2005.
SUBCHAPTER I. ENFORCEMENT
Sec. 781.401. INJUNCTION. The department shall prosecute or
file suit to enjoin a violation of this chapter or a rule adopted
under this chapter.
Added by Acts 2005, 79th Leg., Ch.
808, Sec. 9, eff. September 1, 2005.
Sec. 781.402. CIVIL PENALTY. (a) A person who violates this
chapter or a rule adopted under this chapter is liable for a
civil penalty not to exceed $5,000 a day.
(b) At the request of the department, the attorney general may
bring an action to recover a civil penalty authorized under this
section.
(c) The attorney general may recover reasonable expenses
incurred in obtaining a civil penalty under this section,
including court costs, reasonable attorney's fees, investigative
costs, witness fees, and deposition expenses.
Added by Acts 2005, 79th Leg., Ch.
808, Sec. 9, eff. September 1, 2005.
Sec. 781.403. OFFENSE. (a) A person commits an offense if the
person:
(1) knowingly falsifies fingerprints or photographs submitted to
the department;
(2) contracts with or employs a person who is required to hold a
license or registration under this chapter knowing that the
person does not hold the required license or registration or who
otherwise, at the time of contract or employment, is in violation
of this chapter; or
(3) violates a provision of this chapter.
(b) An offense under Subsection (a)(1) is a felony of the third
degree.
(c) An offense under Subsection (a)(2) is a Class A misdemeanor.
(d) An offense under Subsection (a)(3) is a Class A misdemeanor,
except that the offense is a felony of the third degree if the
person has previously been convicted under this chapter for
failing to hold a license or registration that the person is
required to hold under this chapter.
Added by Acts 2005, 79th Leg., Ch.
808, Sec. 9, eff. September 1, 2005.
Sec. 781.404. VENUE. An offense under this chapter may be
prosecuted in Travis County or in the county in which the offense
occurred.
Added by Acts 2005, 79th Leg., Ch.
808, Sec. 9, eff. September 1, 2005.
SUBCHAPTER J. ADMINISTRATIVE PENALTY
Sec. 781.451. IMPOSITION OF ADMINISTRATIVE PENALTY. The
department may impose an administrative penalty on a person
licensed under this chapter who violates this chapter or a rule
or order adopted under this chapter.
Added by Acts 2005, 79th Leg., Ch.
808, Sec. 9, eff. September 1, 2005.
Sec. 781.452. AMOUNT OF ADMINISTRATIVE PENALTY. (a) The amount
of the administrative penalty may not be less than $50 or more
than $5,000 for each violation. Each day a violation continues
or occurs is a separate violation for the purpose of imposing a
penalty.
(b) The amount shall be based on:
(1) the seriousness of the violation, including the nature,
circumstances, extent, and gravity of the violation;
(2) the economic harm caused by the violation;
(3) the history of previous violations;
(4) the amount necessary to deter a future violation;
(5) efforts to correct the violation; and
(6) any other matter that justice may require.
Added by Acts 2005, 79th Leg., Ch.
808, Sec. 9, eff. September 1, 2005.
Sec. 781.453. REPORT AND NOTICE OF VIOLATION AND PENALTY. (a)
If the commissioner or the commissioner's designee determines
that a violation occurred, the commissioner or the designee may
issue to the department a report stating:
(1) the facts on which the determination is based; and
(2) the commissioner's or the designee's recommendation on the
imposition of an administrative penalty, including a
recommendation on the amount of the penalty.
(b) Within 14 days after the date the report is issued, the
commissioner or the commissioner's designee shall give written
notice of the report to the person. The notice must:
(1) include a brief summary of the alleged violation;
(2) state the amount of the recommended administrative penalty;
and
(3) inform the person of the person's right to a hearing on the
occurrence of the violation, the amount of the penalty, or both.
Added by Acts 2005, 79th Leg., Ch.
808, Sec. 9, eff. September 1, 2005.
Sec. 781.454. PENALTY TO BE PAID OR HEARING REQUESTED. (a)
Within 10 days after the date the person receives the notice, the
person in writing may:
(1) accept the determination and recommended administrative
penalty of the commissioner or the commissioner's designee; or
(2) make a request for a hearing on the occurrence of the
violation, the amount of the penalty, or both.
(b) If the person accepts the determination and recommended
penalty of the commissioner or the commissioner's designee, the
department by order shall approve the determination and impose
the recommended penalty.
Added by Acts 2005, 79th Leg., Ch.
808, Sec. 9, eff. September 1, 2005.
Sec. 781.455. HEARING. (a) If the person requests a hearing or
fails to respond in a timely manner to the notice, the
commissioner or the commissioner's designee shall set a hearing
and give written notice of the hearing to the person.
(b) An administrative law judge of the State Office of
Administrative Hearings shall hold the hearing.
(c) The administrative law judge shall make findings of fact and
conclusions of law and promptly issue to the department a
proposal for a decision about the occurrence of the violation and
the amount of a proposed administrative penalty.
Added by Acts 2005, 79th Leg., Ch.
808, Sec. 9, eff. September 1, 2005.
Sec. 781.456. DECISION BY DEPARTMENT. (a) Based on the
findings of fact, conclusions of law, and proposal for decision,
the department by order may determine that:
(1) a violation occurred and impose an administrative penalty;
or
(2) a violation did not occur.
(b) The notice of the department's order given to the person
must include a statement of the right of the person to judicial
review of the order.
Added by Acts 2005, 79th Leg., Ch.
808, Sec. 9, eff. September 1, 2005.
Sec. 781.457. OPTIONS FOLLOWING DECISION: PAY OR APPEAL. (a)
Within 30 days after the date the department's order becomes
final, the person shall:
(1) pay the administrative penalty; or
(2) file a petition for judicial review contesting the
occurrence of the violation, the amount of the penalty, or both.
(b) Within the 30-day period prescribed by Subsection (a), a
person who files a petition for judicial review may:
(1) stay enforcement of the penalty by:
(A) paying the penalty to the court for placement in an escrow
account; or
(B) giving the court a supersedeas bond approved by the court
that:
(i) is for the amount of the penalty; and
(ii) is effective until all judicial review of the department's
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 penalty
and is financially unable to give the supersedeas bond; and
(B) giving a copy of the affidavit to the commissioner or the
commissioner's designee by certified mail.
(c) If the commissioner or the commissioner's designee receives
a copy of an affidavit under Subsection (b)(2), the commissioner
or the designee may file with the court, within five days after
the date the copy is received, a contest to the affidavit.
(d) 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.
Added by Acts 2005, 79th Leg., Ch.
808, Sec. 9, eff. September 1, 2005.
Sec. 781.458. COLLECTION OF PENALTY. (a) If the person does
not pay the administrative penalty and the enforcement of the
penalty is not stayed, the penalty may be collected.
(b) The attorney general may sue to collect the penalty.
Added by Acts 2005, 79th Leg., Ch.
808, Sec. 9, eff. September 1, 2005.
Sec. 781.459. DETERMINATION BY COURT. (a) 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.
(b) If the court does not sustain the finding that a violation
occurred, the court shall order that a penalty is not owed.
Added by Acts 2005, 79th Leg., Ch.
808, Sec. 9, eff. September 1, 2005.
Sec. 781.460. REMITTANCE OF PENALTY AND INTEREST. (a) If the
person paid the administrative penalty and if the amount of the
penalty is reduced or the penalty is not upheld by the court, the
court shall order, when the court's judgment becomes final, that
the appropriate amount plus accrued interest be remitted to the
person.
(b) The interest accrues at the rate charged on loans to
depository institutions by the New York Federal Reserve Bank.
(c) The interest shall be paid for the period beginning on the
date the penalty is paid and ending on the date the penalty is
remitted.
(d) If the person gave a supersedeas bond and the penalty is not
upheld by the court, the court shall order, when the court's
judgment becomes final, the release of the bond.
(e) If the person gave a supersedeas bond and the amount of the
penalty is reduced, the court shall order the release of the bond
after the person pays the reduced amount.
Added by Acts 2005, 79th Leg., Ch.
808, Sec. 9, eff. September 1, 2005.
Sec. 781.461. ADMINISTRATIVE PROCEDURE. A proceeding under this
subchapter is a contested case under Chapter 2001, Government
Code.
Added by Acts 2005, 79th Leg., Ch.
808, Sec. 9, eff. September 1, 2005.