Sec. 14.251. ASSESSMENT OF PENALTY; RESTITUTION ORDER. (a) The commissioner may assess an administrative penalty against a person who knowingly and wilfully violates or causes a violation of this chapter, Chapter 394, or Subtitle B, Title 4, or a rule adopted under this chapter, Chapter 394, or Subtitle B, Title 4.

(a-1) The commissioner shall assess an administrative penalty against a credit access business who knowingly and wilfully violates or causes a violation of Chapter 393, or a rule adopted under Chapter 393.

(b) The commissioner may order the following businesses or other persons to pay restitution to an identifiable person:

(1) a person who violates or causes a violation of this chapter, Chapter 394, or Subtitle B, Title 4, or a rule adopted under this chapter, Chapter 394, or Subtitle B, Title 4;

(2) a credit access business who violates or causes a violation of Chapter 393 or a rule adopted under Chapter 393; or

(3) a person who violates or causes a violation of Subchapter B, Chapter 1956, Occupations Code, or a rule adopted under that subchapter.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997. Amended by Acts 1999, 76th Leg., ch. 62, Sec. 7.29, eff. Sept. 1, 1999.

Amended by:

Acts 2011, 82nd Leg., R.S., Ch. 1302 (H.B. 2594), Sec. 7, eff. January 1, 2012.

Acts 2013, 83rd Leg., R.S., Ch. 63 (H.B. 2548), Sec. 5, eff. September 1, 2013.

Acts 2017, 85th Leg., R.S., Ch. 196 (S.B. 560), Sec. 6, eff. September 1, 2017.

Acts 2019, 86th Leg., R.S., Ch. 767 (H.B. 1442), Sec. 11, eff. September 1, 2019.

Sec. 14.252. AMOUNT OF PENALTY. (a) The commissioner may assess an administrative penalty for a violation in an amount not to exceed $1,000 for each day of the violation.

(b) The aggregate amount of penalties under this subchapter that the commissioner may assess against a person during one calendar year may not exceed the lesser of:

(1) $100,000; or

(2) an amount that is equal to the greater of five percent of the net worth of the creditor or $5,000.

(c) In determining the amount of an administrative penalty, the commissioner shall consider:

(1) the seriousness of the violation, including the nature, circumstances, extent, and gravity of the prohibited act;

(2) the extent of actual or potential harm to a third party;

(3) the history of violations;

(4) the amount necessary to deter future violations;

(5) efforts to correct the violation; and

(6) any other matter that justice may require.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Amended by:

Acts 2005, 79th Leg., Ch. 1018 (H.B. 955), Sec. 4.03, eff. September 1, 2005.

Sec. 14.253. REPORT ON VIOLATION. If the commissioner determines that a violation occurred, the commissioner may issue a report that states:

(1) the facts on which the determination is based; and

(2) the commissioner’s recommendation on imposition of a penalty, including a recommendation on the amount of the penalty.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 14.254. NOTICE OF REPORT ON VIOLATION AND PENALTY RECOMMENDATION. (a) Not later than the 14th day after the date on which a report is issued, the commissioner shall give written notice of the report by certified mail to the person charged with committing or causing the violation.

(b) The notice must:

(1) include a brief summary of the alleged violation;

(2) include a statement of the amount of the recommended penalty; and

(3) 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.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 14.255. RESPONSE OF PERSON RECEIVING NOTICE. Not later than the 20th day after the date on which a person receives notice under Section 14.254, the person may:

(1) accept in writing the determination and recommended penalty of the commissioner; or

(2) make a written request for a hearing on the occurrence of the violation, the amount of the penalty, or both.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 14.256. ACCEPTANCE OF PENALTY; DEFAULT. If a person accepts the determination and recommended penalty of the commissioner or fails to make a timely written request for a hearing, the commissioner by order shall approve the determination and impose the recommended penalty.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Amended by:

Acts 2019, 86th Leg., R.S., Ch. 767 (H.B. 1442), Sec. 12, eff. September 1, 2019.

Sec. 14.257. HEARING ON PENALTY; ORDER. (a) If a person makes a timely written request for a hearing, the commissioner shall set a hearing and give notice of the hearing to the person by certified mail.

(b) The hearing shall be held by a hearings officer who shall make findings of fact and conclusions of law and promptly issue a proposal for a decision about the occurrence of the violation and the amount of a proposed penalty.

(c) According to the findings of fact, conclusions of law, and proposal for a decision, the commissioner by order may find:

(1) that a violation has occurred and impose a penalty; or

(2) a violation has not occurred.

(d) Notice of the commissioner’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.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Amended by:

Acts 2019, 86th Leg., R.S., Ch. 767 (H.B. 1442), Sec. 13, eff. September 1, 2019.

Sec. 14.258. STAY OF PENALTY; SUIT BY ATTORNEY GENERAL. (a) The enforcement of the penalty may be stayed during the time the order is under judicial review if the person pays the penalty to the clerk of the court or files a supersedeas bond with the court in the amount of the penalty. A person who cannot afford to pay the penalty or file the bond may stay the enforcement by filing an affidavit in the manner required by the Texas Rules of Civil Procedure for a party who cannot afford to file security for costs, subject to the right of the commissioner to contest the affidavit as provided by those rules.

(b) The attorney general may sue to collect the penalty.

(c) A court that sustains the occurrence of a violation may uphold or reduce the amount of the administrative penalty and order the person to pay that amount.

(d) A court that does not sustain the occurrence of a violation shall order that no penalty is owed.

(e) If a person has paid a penalty and a court in a final judgment reduces or does not uphold the amount, the court shall order that the appropriate amount plus accrued interest be remitted to the person. The interest rate is the rate authorized by Chapter 304, and interest shall be paid for the period beginning on the date the penalty was paid and ending on the date the penalty is remitted.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Amended by:

Acts 2005, 79th Leg., Ch. 1018 (H.B. 955), Sec. 4.04, eff. September 1, 2005.

Sec. 14.259. RECOVERY OF COSTS. In addition to the administrative penalty or restitution amount, the court may authorize the commissioner to recover from a person who pays an administrative penalty or restitution amount, or both, reasonable expenses incurred in obtaining the ordered amount, including the cost of investigation, witness fees, and deposition expenses.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 14.260. ADMINISTRATIVE PROCEDURE ACT. A proceeding under this subchapter is subject to Chapter 2001, Government Code.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 14.261. ACCEPTANCE OF ASSURANCE.

(a) In administering this chapter, the commissioner may accept assurance of voluntary compliance from a person who is engaging in or has engaged in an act or practice in violation of:

(1) this chapter or a rule adopted under this chapter;

(2) Chapter 393, if the person is a credit access business, or Chapter 394; or

(3) Subtitle B, Title 4, or a rule adopted under Subtitle B, Title 4.

(b) The assurance must be in writing and be filed with the commissioner.

(c) The commissioner may condition acceptance of an assurance of voluntary compliance on the stipulation that the person offering the assurance restore to a person in interest money that may have been acquired by the act or practice described by Subsection (a).

(d) The finance commission may adopt rules to establish the form of the assurance or require certain information be contained in an assurance.

Added by Acts 2005, 79th Leg., Ch. 1018 (H.B. 955), Sec. 4.05, eff. September 1, 2005.

Amended by:

Acts 2011, 82nd Leg., R.S., Ch. 1302 (H.B. 2594), Sec. 8, eff. January 1, 2012.

Acts 2013, 83rd Leg., R.S., Ch. 63 (H.B. 2548), Sec. 6, eff. September 1, 2013.

Acts 2017, 85th Leg., R.S., Ch. 196 (S.B. 560), Sec. 7, eff. September 1, 2017.

Sec. 14.262. EFFECT OF ASSURANCE. (a) An assurance of voluntary compliance is not an admission of a violation of:

(1) this chapter or a rule adopted under this chapter;

(2) Chapter 393 with respect to a credit access business or Chapter 394; or

(3) Subtitle B, Title 4, or a rule adopted under Subtitle B, Title 4.

(b) Unless an assurance of voluntary compliance is rescinded by agreement or voided by a court for good cause, a subsequent failure to comply with the assurance is prima facie evidence of a violation of:

(1) this chapter or a rule adopted under this chapter;

(2) Chapter 393 with respect to a credit access business or Chapter 394; or

(3) Subtitle B, Title 4, or a rule adopted under Subtitle B, Title 4.

Added by Acts 2005, 79th Leg., Ch. 1018 (H.B. 955), Sec. 4.05, eff. September 1, 2005.

Amended by:

Acts 2011, 82nd Leg., R.S., Ch. 1302 (H.B. 2594), Sec. 9, eff. January 1, 2012.

Acts 2013, 83rd Leg., R.S., Ch. 63 (H.B. 2548), Sec. 7, eff. September 1, 2013.

Acts 2017, 85th Leg., R.S., Ch. 196 (S.B. 560), Sec. 8, eff. September 1, 2017.

Sec. 14.263. REOPENING. A matter closed by the filing of an assurance of voluntary compliance may be reopened at any time.

Added by Acts 2005, 79th Leg., Ch. 1018 (H.B. 955), Sec. 4.05, eff. September 1, 2005.

Sec. 14.264. RIGHT TO BRING ACTION NOT AFFECTED. (a) An assurance of voluntary compliance does not affect the right of an individual to bring an action, except as provided in Chapter 349 and except that the right of an individual in relation to money received according to a stipulation under Section 14.261(c) is governed by the terms of the assurance.

(b) A person entering into an assurance of voluntary compliance may, not later than the 60th day after the date of filing of the assurance, correct the violation under Section 349.201. Amounts paid as restitution and other acts taken in accordance with an assurance of voluntary compliance shall be considered for purposes of determining whether the obligor has made a correction under Subchapter C, Chapter 349. With respect to corrections of violations or possible violations relating to matters addressed in the assurance of voluntary compliance, the date of filing of the assurance is considered to be the date of:

(1) actual discovery of the violation or possible violation;

(2) written notice; and

(3) filing of the action alleging the violation.

Added by Acts 2005, 79th Leg., Ch. 1018 (H.B. 955), Sec. 4.05, eff. September 1, 2005.