CHAPTER 566. PENALTIES AND ENFORCEMENT PROVISIONS
OCCUPATIONS CODE
TITLE 3. HEALTH PROFESSIONS
SUBTITLE J. PHARMACY AND PHARMACISTS
CHAPTER 566. PENALTIES AND ENFORCEMENT PROVISIONS
SUBCHAPTER A. ADMINISTRATIVE PENALTY
Sec. 566.001. IMPOSITION OF PENALTY. The board may impose an
administrative penalty on 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. 566.002. AMOUNT OF PENALTY. (a) The amount of the
administrative penalty may not exceed $5,000 for each violation,
including a violation involving the diversion of a controlled
substance.
(b) Each day a violation continues or occurs is a separate
violation for purposes of imposing the penalty.
(c) The amount, to the extent possible, shall be based on:
(1) the seriousness of the violation, including the nature,
circumstances, extent, and gravity of any prohibited act, and 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.
(d) The board by rule shall adopt an administrative penalty
schedule for violations of this subtitle or board rules to ensure
that the amounts of penalties imposed are appropriate to the
violation.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
Amended by:
Acts 2005, 79th Leg., Ch.
1345, Sec. 30, eff. September 1, 2005.
Sec. 566.003. NOTICE OF VIOLATION. (a) If the board by order
determines that a violation occurred and imposes an
administrative penalty, the board shall give notice of the
board's order to the person found to have committed the
violation.
(b) The notice must include a statement of the person's right to
judicial review of the order.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
Sec. 566.004. OPTIONS FOLLOWING DECISION: PAY OR APPEAL. (a)
Not later than the 30th day after the date the board's order
becomes final, the person shall:
(1) pay the administrative penalty;
(2) pay the penalty and file a petition for judicial review
contesting the fact of the violation, the amount of the penalty,
or both; or
(3) without paying the penalty, file a petition for judicial
review contesting the fact 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 that is approved by
the court and that:
(i) is for the amount of the penalty; and
(ii) is effective until 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 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 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. 566.005. 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. 566.006. DETERMINATION BY COURT. (a) If the court
sustains the determination that a violation occurred on appeal,
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. 566.007. REMITTANCE OF PENALTY AND INTEREST. (a) If after
judicial review, the administrative penalty is reduced or is not
upheld 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
upheld or order the release of the bond after the person pays the
penalty imposed if the person gave 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 shall be 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.
Sec. 566.008. EFFECT OF SUBCHAPTER. This subchapter does not
limit the board's ability to impose an administrative penalty
under a consent order entered in accordance with board rules and
requirements adopted under Section 565.056.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
Sec. 566.009. ADMINISTRATIVE PROCEDURE. (a) The board by rule
shall prescribe procedures, consistent with provisions of Chapter
2001, Government Code, relating to contested cases, by which the
board may impose an administrative penalty.
(b) Chapter 2001, Government Code, applies to a proceeding under
this subchapter.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
SUBCHAPTER B. INJUNCTIVE RELIEF
Sec. 566.051. INJUNCTIVE RELIEF. (a) The attorney general at
the request of the board may petition a district court for an
injunction to prohibit a person who is violating this subtitle
from continuing the violation.
(b) Venue in a suit for injunctive relief is in Travis County.
(c) After application and a finding that a person is violating
this subtitle, the district court shall grant the injunctive
relief the facts warrant.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
Amended by:
Acts 2005, 79th Leg., Ch.
1345, Sec. 31, eff. September 1, 2005.
Sec. 566.052. CEASE AND DESIST ORDER. (a) If it appears to the
board that a person is engaging in an act or practice that
constitutes the practice of pharmacy without a license or
registration under this subtitle, 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 issued under this section
constitutes grounds for imposing an administrative penalty under
Subchapter A.
Added by Acts 2005, 79th Leg., Ch.
1345, Sec. 32, eff. September 1, 2005.
SUBCHAPTER C. CIVIL PENALTY
Sec. 566.101. CIVIL PENALTY. (a) A person who violates the
license requirements of this subtitle is liable to the state for
a civil penalty not to exceed $1,000 for each day the violation
continues.
(b) A person found by the board to have unlawfully engaged in
the practice of pharmacy or unlawfully operated a pharmacy is
subject to a civil penalty under this section.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
Sec. 566.102. COLLECTION BY ATTORNEY GENERAL. At the request of
the board, the attorney general shall institute an action to
collect a civil penalty from a person who has violated this
subtitle or any rule adopted under this subtitle.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
Sec. 566.103. COLLECTION BY DISTRICT, COUNTY, OR CITY ATTORNEY.
(a) If the attorney general fails to take action before the 31st
day after the date of referral from the board under Section
566.102, the board shall refer the case to the local district
attorney, county attorney, or city attorney.
(b) The district attorney, county attorney, or city attorney
shall file suit in a district court to collect and retain the
penalty.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
Sec. 566.104. VENUE. Venue for a suit under this subchapter is
in Travis County.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.
SUBCHAPTER D. CRIMINAL OFFENSES
Sec. 566.151. OFFENSES; CRIMINAL PENALTY. (a) A person commits
an offense if the person violates this subtitle or any rule
adopted under this subtitle relating to unlawfully engaging in
the practice of pharmacy or unlawfully operating a pharmacy.
(b) A person commits an offense if the person knowingly violates
the licensing requirements of this subtitle or Section 558.001,
558.002, or 560.002.
(c) A person commits an offense if the person violates Section
560.001 or 560.003.
(d) Each day of violation under Subsection (b) or (c) is a
separate offense.
(e) An offense under this section is a Class A misdemeanor.
Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.