CHAPTER 165. PENALTIES
OCCUPATIONS CODE
TITLE 3. HEALTH PROFESSIONS
SUBTITLE B. PHYSICIANS
CHAPTER 165. PENALTIES
SUBCHAPTER A. ADMINISTRATIVE PENALTIES
Sec. 165.001. IMPOSITION OF ADMINISTRATIVE PENALTY. The board
by order may impose an administrative penalty against a person
licensed or regulated under this subtitle who violates this
subtitle or a rule or order adopted under this subtitle.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
Sec. 165.002. PROCEDURE. (a) The board by rule shall prescribe
the procedure by which it may impose an administrative penalty.
(b) A proceeding under this subchapter is subject to Chapter
2001, Government Code.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
Amended by Acts 2001, 77th Leg., ch. 1420, Sec. 14.035, eff.
Sept. 1, 2001.
Sec. 165.003. AMOUNT OF PENALTY. (a) The amount of an
administrative penalty may not exceed $5,000 for each violation.
Each day a violation continues or occurs is a separate violation
for purposes of imposing a penalty.
(b) The amount of the penalty shall be based on:
(1) the seriousness of the violation, including:
(A) the nature, circumstances, extent, and gravity of any
prohibited act; and
(B) the hazard or potential hazard created to the health,
safety, or economic welfare of the public;
(2) the economic harm to property or the environment 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.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
Sec. 165.004. NOTICE OF VIOLATION AND PENALTY. (a) If the
board by order determines that a violation has occurred and
imposes an administrative penalty, the board shall notify the
affected person of the board's order.
(b) The notice must include a statement of the right of the
person to judicial review of the order.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
Sec. 165.005. OPTIONS FOLLOWING DECISION: PAY OR APPEAL. (a)
Not later than the 30th day after the date the board's order
imposing the administrative penalty is final, the person shall:
(1) pay the penalty;
(2) pay the penalty and file a petition for judicial review
contesting the occurrence of the violation, the amount of the
penalty, or both; 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.
(b) Within the 30-day period, a person who acts under Subsection
(a)(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 approved by the court
for the amount of the penalty and that is effective until all
judicial review of the board's order is final; or
(2) request the court to stay enforcement of the penalty by:
(A) filing with the court an 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 executive director by
certified mail.
(c) If the executive director receives a copy of an affidavit
under Subsection (b)(2), the executive director may file with the
court a contest to the affidavit not later than the fifth day
after the date the copy is received.
(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.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
Sec. 165.006. COLLECTION OF PENALTY. If the person does not pay
the administrative penalty and the enforcement of the penalty is
not stayed, the executive director may refer the matter to the
attorney general for collection of the penalty.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
Sec. 165.007. DETERMINATION BY COURT. (a) If on appeal 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 penalty.
(b) If the court does not sustain the determination that a
violation occurred, the court shall order that a penalty is not
owed.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
Sec. 165.008. REMITTANCE OF PENALTY AND INTEREST. (a) If after
judicial review, the administrative penalty is reduced or not
imposed by the court, the court shall, after the judgment becomes
final:
(1) order that the appropriate amount, plus accrued interest, be
remitted to the person if the person paid the penalty; or
(2) order the release of the bond in full if the penalty is not
imposed or order the release of the bond after the person pays
the penalty imposed if the person posted a supersedeas bond.
(b) The interest paid under Subsection (a)(1) is the rate
charged on loans to depository institutions by the New York
Federal Reserve Bank. The interest is paid for the period
beginning on the date the penalty is paid and ending on the date
the penalty is remitted.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
SUBCHAPTER B. INJUNCTIVE RELIEF AND OTHER ENFORCEMENT PROVISIONS
Sec. 165.051. INJUNCTION AUTHORITY. In addition to any other
action authorized by law, the board may institute an action in
its own name to enjoin a violation of this subtitle.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
Sec. 165.052. CEASE AND DESIST ORDER. (a) If it appears to the
board that a person who is not licensed under this subtitle is
violating this subtitle, a rule adopted under this subtitle, or
another state statute or rule relating to the practice of
medicine, the board after notice and opportunity for a hearing
may issue a cease and desist order prohibiting the person from
engaging in the activity.
(b) A violation of an order under this section constitutes
grounds for imposing an administrative penalty under this
chapter.
Added by Acts 2005, 79th Leg., Ch.
269, Sec. 1.48, eff. September 1, 2005.
SUBCHAPTER C. CIVIL PENALTIES
Sec. 165.101. CIVIL PENALTY. (a) If it appears that a person
is in violation of or is threatening to violate this subtitle or
a rule or order adopted by the board, the attorney general may
institute an action for a civil penalty of $1,000 for each
violation.
(b) Each day a violation continues constitutes a separate
violation.
(c) An action filed under this section must be filed in a
district court in Travis County or the county in which the
violation occurred.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
Sec. 165.102. LIMITATION ON CIVIL PENALTY. The attorney general
may not institute an action for a civil penalty against a person
described by Section 151.053 or 151.054 if the person is not in
violation of or threatening to violate this subtitle or a rule or
order adopted by the board.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
Sec. 165.103. RECOVERY OF EXPENSES BY ATTORNEY GENERAL; DEPOSIT.
(a) The attorney general may recover reasonable expenses
incurred in obtaining a civil penalty under this subchapter,
including:
(1) court costs;
(2) reasonable attorney's fees;
(3) investigative costs;
(4) witness fees; and
(5) deposition expenses.
(b) A civil penalty recovered by the attorney general under this
subchapter shall be deposited in the general revenue fund.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
SUBCHAPTER D. CRIMINAL PENALTIES
Sec. 165.151. GENERAL CRIMINAL PENALTY. (a) A person commits
an offense if the person violates this subtitle or a rule of the
board.
(b) If another penalty is not specified for the offense, an
offense under this section is a Class A misdemeanor.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
Sec. 165.152. PRACTICING MEDICINE IN VIOLATION OF SUBTITLE. (a)
A person commits an offense if the person practices medicine in
this state in violation of this subtitle.
(b) Each day a violation continues constitutes a separate
offense.
(c) An offense under Subsection (a) is a felony of the third
degree.
(d) On final conviction of an offense under this section, a
person forfeits all rights and privileges conferred by virtue of
a license issued under this subtitle.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
Amended by Acts 2003, 78th Leg., ch. 202, Sec. 37, eff. June 10,
2003.
Sec. 165.153. CRIMINAL PENALTIES FOR ADDITIONAL HARM. (a) A
person commits an offense if the person practices medicine
without a license or permit and causes another person:
(1) physical or psychological harm; or
(2) financial harm.
(b) An offense under Subsection (a)(1) is a felony of the third
degree.
(c) An offense under Subsection (a)(2) is a state jail felony.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
Sec. 165.1535. PERFORMING SURGERY WHILE INTOXICATED. (a) In
this section, "intoxicated" has the meaning assigned by Section
49.01, Penal Code.
(b) A person commits an offense if the person is licensed or
regulated under this subtitle, performs surgery on a patient
while intoxicated, and, by reason of that conduct, places the
patient at a substantial and unjustifiable risk of harm.
(c) An offense under this section is a state jail felony.
(d) It is an affirmative defense to prosecution under this
section that the actor performed the surgery in an emergency. In
this subsection, "emergency" means a condition or circumstance in
which a reasonable person with education and training similar to
that of the actor would assume that the person on whom the
surgery was performed was in imminent danger of serious bodily
injury or death.
Added by Acts 2003, 78th Leg., ch. 565, Sec. 1, eff. Sept. 1,
2003.
Sec. 165.154. TAMPERING WITH GOVERNMENTAL RECORD; PERJURY
OFFENSES. (a) A person commits an offense if the person makes a
false statement:
(1) in the person's application for a license; or
(2) under oath to obtain a license or to secure the registration
of a license to practice medicine.
(b) An offense under this section:
(1) constitutes tampering with a governmental record or perjury
as provided by the Penal Code; and
(2) shall be punished on conviction as provided by that code.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
Sec. 165.155. SOLICITATION OF PATIENTS; PENALTY. (a) A
physician commits an offense if the physician employs or agrees
to employ, pays or promises to pay, or rewards or promises to
reward any person, firm, association, partnership, or corporation
for securing or soliciting a patient or patronage.
(b) Each payment, reward, or fee or agreement to pay or accept a
reward or fee constitutes a separate offense.
(c) A physician commits an offense if the physician accepts or
agrees to accept a payment or other thing of value for securing
or soliciting patronage for another physician.
(d) This section does not prohibit advertising except that
which:
(1) is false, misleading, or deceptive; or
(2) advertises professional superiority or the performance of
professional service in a superior manner and which is not
readily subject to verification.
(e) An offense under this section is a Class A misdemeanor.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
Sec. 165.156. MISREPRESENTATION REGARDING ENTITLEMENT TO
PRACTICE MEDICINE. A person, partnership, trust, association, or
corporation commits an offense if the person, partnership, trust,
association, or corporation, through the use of any letters,
words, or terms affixed on stationery or on advertisements, or in
any other manner, indicates that the person, partnership, trust,
association, or corporation is entitled to practice medicine if
the person, partnership, trust, association, or corporation is
not licensed to do so.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
Sec. 165.157. DUTY TO ASSIST IN CERTAIN PROSECUTIONS. (a) The
board and the board's employees shall assist the local
prosecuting officers of each county in the enforcement of:
(1) state laws prohibiting the unlawful practice of medicine;
(2) this subtitle; and
(3) other matters.
(b) Except as otherwise provided by law, a prosecution is
subject to the direction and control of the prosecuting officers.
This subtitle does not deprive those officers of any authority
vested by law.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
Sec. 165.158. UNAUTHORIZED RELEASE OF CONFIDENTIAL INFORMATION.
(a) A person commits an offense if the person unlawfully
discloses confidential information described by Section 160.006
that is possessed by the board.
(b) An offense under this section is a Class A misdemeanor.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
Sec. 165.159. PRACTICING MEDICINE WITHOUT REGISTRATION. (a) A
person commits an offense if the person practices medicine
without complying with the registration requirements imposed by
this subtitle.
(b) An offense under Subsection (a) constitutes the offense of
practicing medicine without a license.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
Sec. 165.160. EFFECT ON CRIMINAL PROSECUTION. This subtitle
does not bar a criminal prosecution for a violation of this
subtitle or a rule adopted under this subtitle.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.