Texas § HS.247.045 - CIVIL PENALTIES

§ HS.247.045. CIVIL PENALTIES

CIVIL PENALTIES. (a) Except as provided by Subsections (b) and (c), a person who violates this chapter or who fails to comply with a rule adopted under this chapter and whose violation is determined by the department to threaten the health and safety of a resident of an assisted living facility is subject to a civil penalty of not less than $100 nor more than $10,000 for each act of violation. Each day of a continuing violation constitutes a separate ground of recovery. (b) A person is subject to a civil penalty if the person: (1) is in violation of Section 247.021 ; or (2) has been determined to be in violation of Section 247.021 and violates any other provision of this chapter or fails to comply with a rule adopted under this chapter. (c) The amount of a civil penalty under Subsection (b) may not be less than $1,000 or more than $10,000 for each act of violation. Each day of a continuing violation constitutes a separate ground of recovery. (d) The attorney general may institute and conduct a suit to collect a penalty and fees under this section at the request of the department. If the attorney general fails to notify the department within 30 days of referral from the department that the attorney general will accept the case, the department shall refer the case to the local district attorney, county attorney, or city attorney. The district attorney, county attorney, or city attorney shall file suit in a district court to collect and retain the penalty. (e) Investigation and attorney's fees may not be assessed or collected by or on behalf of the department or other state agency unless a penalty described under this chapter is assessed. (f) The department and attorney general, or other legal representative as described in Subsection (d), shall work in close cooperation throughout any legal proceedings requested by the department. (g) The commissioner must approve any settlement agreement to a suit brought under this chapter. (h) If a person who is liable under this section fails to pay any amount the person is obligated to pay under this section, the state may seek satisfaction from any owner, other controlling person, or affiliate of the person found liable. The owner, other controlling person, or affiliate may be found liable in the same suit or in another suit on a showing by the state that the amount to be paid has not been paid or otherwise legally discharged. The executive commissioner by rule may establish a method for satisfying an obligation imposed under this section from an insurance policy, letter of credit, or other contingency fund. (i) In this section, "affiliate" means: (1) with respect to a partnership other than a limited partnership, each partner of the partnership; (2) with respect to a corporation: (A) an officer; (B) a director; (C) a stockholder who owns, holds, or has the power to vote at least 10 percent of any class of securities issued by the corporation, regardless of whether the power is of record or beneficial; and (D) a controlling individual; (3) with respect to an individual: (A) each partnership and each partner in the partnership in which the individual or any other affiliate of the individual is a partner; and (B) each corporation or other business entity in which the individual or another affiliate of the individual is: (i) an officer; (ii) a director; (iii) a stockholder who owns, holds, or has the power to vote at least 10 percent of any class of securities issued by the corporation, regardless of whether the power is of record or beneficial; and (iv) a controlling individual; (4) with respect to a limited partnership: (A) a general partner; and (B) a limited partner who is a controlling individual; (5) with respect to a limited liability company: (A) an owner who is a manager under the Texas Limited Liability Company Law as described by Section 1.008 (e), Business Organizations Code; and (B) each owner who is a controlling individual; and (6) with respect to any other business entity, a controlling individual. Added by Acts 1991, 72nd Leg., ch. 14, Sec. 114, eff. Sept. 1, 1991. Renumbered from Sec. 247.044 and amended by Acts 1991, 72nd Leg., ch. 637, art. 2, Sec. 1, eff. Sept. 1, 1991. Amended by Acts 1997, 75th Leg., ch. 416, Sec. 4, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1088, Sec. 4, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 62, Sec. 11.03, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 233, Sec. 1, eff. Sept. 1, 1999. Amended by: Acts 2007, 80th Leg., R.S., Ch. 1194 (H.B. 1168 ), Sec. 9, eff. September 1, 2007. Acts 2015, 84th Leg., R.S., Ch. 1 (S.B. 219 ), Sec. 3.0712, eff. April 2, 2015.