Tex. Human Resources Code Section 42.078
Administrative Penalty


(a)

The commission may impose an administrative sanction or an administrative penalty against a facility or family home licensed, registered, or listed under this chapter that violates this chapter or a rule or order adopted under this chapter. In addition, the commission may impose an administrative penalty against a facility or family home or a controlling person of a facility or family home if the facility, family home, or controlling person:

(1)

violates a term of a license or registration issued under this chapter;

(2)

makes a statement about a material fact that the facility or person knows or should know is false:

(A)

on an application for the issuance of a license or registration or an attachment to the application; or

(B)

in response to a matter under investigation;

(3)

refuses to allow a representative of the commission to inspect:

(A)

a book, record, or file required to be maintained by the facility; or

(B)

any part of the premises of the facility;

(4)

purposefully interferes with the work of a representative of the commission or the enforcement of this chapter; or

(5)

fails to pay a penalty assessed under this chapter on or before the date the penalty is due, as determined under this section.

(a-1)

Except as provided by Subsection (a-2), nonmonetary administrative sanctions, including corrective action plans and probation periods, shall be imposed when appropriate before administrative penalties.

(a-2)

The commission may impose an administrative penalty without first imposing a nonmonetary administrative sanction for violating a minimum standard applicable to a facility or family home under this chapter that is determined by the commission to be a high-risk standard, including standards for a violation constituting abuse, neglect, or exploitation of a child, background check standards, safety hazard standards, standards establishing times for reporting information to a parent or guardian or the commission, and supervision standards.

(b)

Each day a violation continues or occurs is a separate violation for purposes of imposing a penalty. The penalty for a violation may be in an amount not to exceed the following limits, based on the maximum number of children for whom the facility or family home was authorized to provide care or the number of children under the care of the child-placing agency when the violation occurred:

(1)

for violations that occur in a facility other than a residential child-care facility:

(2)

for violations that occur in a residential child-care facility:

(c)

In addition to the number of children, the amount of the penalty shall be based on:

(1)

the seriousness of the violation, including the nature, circumstances, extent, and gravity of any prohibited acts, 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 future violations;

(5)

efforts to correct the violation; and

(6)

any other matter that justice may require.

(d)

Monetary penalties may not be assessed for violations that are the result of clerical errors.

(e)

If the commission determines that a violation has occurred, the commission may issue a recommendation on the imposition of a penalty, including a recommendation on the amount of the penalty.

(e-1)

Notwithstanding the amounts required by Subsections (b) and (c) and except as provided by Subsection (e-3), the commission shall recommend the penalty for the following violations by a facility or family home to be assessed in the following amounts:

(1)

$1,000 for a violation that constitutes abuse, neglect, or exploitation of a child;

(2)

$500 for failure to report to a parent or guardian of a child or the commission within the time required by commission standards an injury of a child in the care of the facility or home that requires treatment by a medical professional or hospitalization or an illness of a child that requires hospitalization;

(3)

$50 for failure to report to a parent or guardian of each child in the care of the facility or home within the time required by commission standards that the commission cited the facility or home for a violation:

(A)

that constitutes abuse, neglect, or exploitation of a child; or

(B)

of a safe sleeping standard; and

(4)

$50 for failure to report to a parent or guardian of each child in the care of the facility or home within the time required by commission standards that the facility or home does not maintain liability insurance coverage.

(e-2)

For purposes of Subsections (e-1)(3) and (4), the commission shall recommend a penalty of $50 for the initial violation and an additional penalty of $50 for each day the violation continues or occurs.

(e-3)

Subsection (e-1)(1) does not apply to a residential child-care facility.

(f)

Within 14 days after the date the recommendation is issued, the commission shall give written notice of the recommendation to the person owning or operating the facility or family home or to the controlling person, if applicable. The notice may be given by certified mail. The notice must include a brief summary of the alleged violation and a statement of the amount of the recommended penalty and must inform the person that the person has a right to a hearing on the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty.

(g)

Within 20 days after the date the person receives the notice, the person in writing may accept the determination and recommended penalty of the commission or may make a written request for a hearing on the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty.

(h)

If the person accepts the determination and recommended penalty of the commission or fails to respond to the notice in a timely manner, the commission shall issue an order and impose the recommended penalty.

(i)

If the person requests a hearing, the commission shall set a hearing and give notice of the hearing to the person. The hearing shall be held by an administrative law judge of the State Office of Administrative Hearings. The administrative law judge shall make findings of fact and conclusions of law and issue a final decision finding that a violation has occurred and imposing a penalty or finding that no violation occurred.

(j)

The notice of the administrative law judge’s order given to the person under Chapter 2001 (Administrative Procedure), Government Code, must include a statement of the right of the person to judicial review of the order.

(k)

Within 30 days after the date the administrative law judge’s order becomes final as provided by Section 2001.144 (Decisions or Orders; When Final), Government Code, the person shall:

(1)

pay the amount of the penalty;

(2)

pay the amount of the penalty and file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty; or

(3)

without paying the amount of the penalty, file a petition for judicial review contesting the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty.

(l)

Within the 30-day period, a person who acts under Subsection (k)(3) may:

(1)

stay enforcement of the penalty by:

(A)

paying the amount of 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 for the amount of the penalty and that is effective until all judicial review of the 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 amount of the penalty and is financially unable to give the supersedeas bond; and

(B)

giving a copy of the affidavit to the department by certified mail.

(m)

On receipt of a copy of an affidavit under Subsection (l)(2), the commission may file with the court, within five days after the date the copy is received, a contest to the affidavit. 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 amount of the penalty and to give a supersedeas bond.

(n)

If the person does not pay the amount of the penalty and the enforcement of the penalty is not stayed, the commission may refer the matter to the attorney general for collection of the amount of the penalty.

(o)

Judicial review of the order:

(1)

is instituted by filing a petition as provided by Subchapter G (Judicial Review), Chapter 2001 (Administrative Procedure), Government Code; and

(2)

is under the substantial evidence rule.

(p)

If the court sustains the occurrence of the violation, the court may uphold or reduce the amount of the penalty and order the person to pay the full or reduced amount of the penalty. If the court does not sustain the occurrence of the violation, the court shall order that no penalty is owed.

(q)

When the judgment of the court becomes final, the court shall proceed under this subsection. If the person paid the amount of the penalty and if that amount is reduced or is not upheld by the court, the court shall order that the appropriate amount plus accrued interest be remitted to the person. The rate of the interest is the rate charged on loans to depository institutions by the New York Federal Reserve Bank, and the interest shall be paid for the period beginning on the date the penalty was paid and ending on the date the penalty is remitted. If the person gave a supersedeas bond and if the amount of the penalty is not upheld by the court, the court shall order the release of the bond. If the person gave a supersedeas bond and if the amount of the penalty is reduced, the court shall order the release of the bond after the person pays the amount.

(r)

A penalty collected under this section shall be sent to the comptroller for deposit in the safety training account established under Section 42.04215 (Safety Training Account).

(s)

All proceedings under this section are subject to Chapter 2001 (Administrative Procedure), Government Code.
Added by Acts 1997, 75th Leg., ch. 1022, Sec. 43, eff. Sept. 1, 1997. Amended by Acts 1999, 76th Leg., ch. 1129, Sec. 4, eff. Sept. 1, 1999.
Amended by:
Acts 2005, 79th Leg., Ch. 268 (S.B. 6), Sec. 1.110(a), eff. September 1, 2005.
Acts 2007, 80th Leg., R.S., Ch. 1406 (S.B. 758), Sec. 42, eff. September 1, 2007.
Acts 2011, 82nd Leg., R.S., Ch. 1082 (S.B. 1178), Sec. 9, eff. September 1, 2011.
Acts 2013, 83rd Leg., R.S., Ch. 746 (S.B. 427), Sec. 4, eff. September 1, 2013.
Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219), Sec. 4.239, eff. April 2, 2015.
Acts 2015, 84th Leg., R.S., Ch. 944 (S.B. 206), Sec. 82, eff. September 1, 2015.
Acts 2015, 84th Leg., R.S., Ch. 1057 (H.B. 2070), Sec. 4, eff. September 1, 2015.
Acts 2019, 86th Leg., R.S., Ch. 394 (S.B. 781), Sec. 9, eff. September 1, 2019.
Acts 2019, 86th Leg., R.S., Ch. 588 (S.B. 568), Sec. 9, eff. September 1, 2019.

Source: Section 42.078 — Administrative Penalty, https://statutes.­capitol.­texas.­gov/Docs/HR/htm/HR.­42.­htm#42.­078 (accessed Mar. 23, 2024).

42.001
Purpose
42.002
Definitions
42.003
Reference to Child-care Institution
42.004
Confidentiality of Investigation Information
42.021
Division Designated
42.023
Annual Report
42.024
Administrative Procedure
42.025
Searchable Database
42.026
Access to Database
42.027
Independent Assessment
42.0031
Reference to Part of Continuum-of-care Operation
42.041
Required License
42.042
Rules and Standards
42.043
Rules for Immunizations
42.044
Inspections
42.045
Records
42.046
Application for License, Listing, or Registration
42.047
Consultations
42.048
Licensing
42.049
Liability Insurance Required
42.050
License Renewal
42.051
Initial License
42.052
Certification, Listing, and Registration
42.053
Agency Foster Homes
42.054
Fees
42.055
Sign Posting
42.056
Required Background and Criminal History Checks
42.057
Drug Testing
42.058
Competitive Bidding or Advertising Rules
42.059
Required Affidavit for Applicants for Employment with Facility or Registered Family Home
42.060
Carbon Monoxide Detectors
42.062
Certain Employment and Service Prohibited
42.063
Reporting of Incidents and Violations
42.064
Information Regarding Gang-free Zones
42.065
Administering Medication
42.066
Required Submission of Information Requested by Court
42.067
Epinephrine Auto-injectors
42.068
Required Posting of No Trespassing Notice
42.071
Suspension or Probation of License or Registration
42.072
License, Listing, or Registration Denial, Suspension, or Revocation
42.073
Emergency Suspension and Closure of a Facility or Family Home
42.074
Injunctive Relief
42.075
Civil Penalty
42.076
Criminal Penalties
42.077
Notice of Action Against Facility or Family Home
42.078
Administrative Penalty
42.079
Cease and Desist Order
42.080
Disciplinary Action Prohibited
42.151
Definitions
42.152
Permit Required
42.153
Application
42.154
Conversion of License
42.155
Parent or Guardian Within Immediate Vicinity
42.156
Caregiver-to-child Ratio
42.157
Minimum Standards
42.158
Caregiver Qualifications
42.159
Background and Criminal History Checks Required
42.160
Applicability of Other Law
42.161
Reporting of Incidents and Violations
42.162
Authority to Conduct Limited Inspections
42.163
Suspension, Denial, or Revocation
42.201
Definitions
42.202
Permit Required
42.203
Application
42.204
Conversion of License
42.205
Caregiver Qualifications and Training
42.206
Background and Criminal History Checks Required
42.207
Applicability of Other Law
42.208
Reporting of Incidents and Violations
42.209
Authority to Conduct Limited Inspections
42.210
Suspension, Denial, or Revocation
42.0211
Safety Specialists, Risk Analysts, and Performance Management
42.251
Applicability
42.252
Proposed Operational Plan
42.253
Confidentiality of Information Relating to Services for Human Trafficking Victims
42.254
Duties Relating to Education of Children in General Residential Operation
42.255
Hearing Before Renewal of License
42.256
Treatment Model
42.257
Evaluation of Placements
42.258
Limit on Placements for New Facility
42.259
Transition Plans
42.260
Telehealth Pilot Program
42.0412
Collection of Licensed Day-care Center Data
42.0421
Minimum Training Standards
42.0422
Restraint and Seclusion
42.0423
Children’s Product Safety for Certain Nonresidential Child-care Facilities
42.0424
Child Safety Alarms in Vehicles
42.0425
Assessment Services
42.0426
Training of Personnel
42.0427
Parental Visitation
42.0428
Policies Addressing Sexual Abuse and Other Maltreatment of Children
42.0429
Safe Sleeping Standards
42.0431
Enforcement of Screening Requirements Relating to Vision, Hearing, and Other Special Senses and Communication Disorders
42.0432
Health Screening Requirements for Child Placed with Child-placing Agency
42.0433
Suicide Prevention, Intervention, and Postvention Plan
42.0441
Inspection Results for Certain Nonresidential Child-care Facilities
42.0442
Coordination of Inspections
42.0443
Coordination of Fire Safety and Sanitation Inspections
42.0445
Required Background Search of Central Registry of Reported Cases of Child Abuse or Neglect
42.0446
Removal of Certain Investigation Information from Internet Website
42.0447
False Report
42.0448
Notification of Family Violence Calls
42.0449
Required Actions After Notice of Family Violence Call
42.0451
Database of Agency Foster Homes
42.0452
Foster Parent Rights and Responsibilities Statement
42.0461
Public Notice and Hearing: Residential Child Care
42.0462
Waiver of Notice and Hearing Requirements
42.0463
Expansion of Capacity
42.0495
Liability Insurance Required for Listed Family Homes
42.0521
Deposit of Fees
42.0522
Public Advertising of Family Homes
42.0523
Listing of Relative Child-care Providers
42.0531
Secure Agency Foster Homes
42.0535
Required Information for Verification
42.0536
Transfer of Agency Foster Home
42.0537
Caregiver Training Requirement
42.0538
Provisional License for Kinship Provider
42.0551
Posting of Employee List
42.0561
Information Relating to Family Violence Reports
42.0562
Information Regarding Certain Group Day-care Home and Family Home Employees
42.0563
Pre-employment Affidavit
42.0583
Identifying At-risk Providers
42.0704
Enforcement Policy
42.0705
Range of Penalties
42.0715
Costs Charged to Facility or Family Home
42.0761
Criminal Penalty for Operating Day-care Center Without Qualified Director
42.2541
Improving Education Services for Children
42.04201
Interim Director
42.04215
Safety Training Account
42.04261
Other Training of Personnel: Child-placing Agencies and Day-care Centers
42.04271
Rights of Parent or Guardian with Child in Certain Child-care Facilities
42.04291
Supervision Standards for Infant During Time Spent on Stomach
42.04305
Vaccine-preventable Disease Policy Required
42.04411
Inspection Results and Exit Conference for Residential Child-care Facilities
42.04412
Interference with Inspection
42.04425
Inspection Information Database
42.04431
Enforcement of State Law by County or Municipality

Accessed:
Mar. 23, 2024

§ 42.078’s source at texas​.gov