OCCUPATIONS CODE
CHAPTER 165. PENALTIES
SUBCHAPTER A. ADMINISTRATIVE PENALTIES
§ 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, § 1, eff. Sept. 1, 1999.
§ 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, § 1, eff. Sept. 1, 1999. Amended
by Acts 2001, 77th Leg., ch. 1420, § 14.035, eff. Sept. 1, 2001.
§ 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, § 1, eff. Sept. 1, 1999.
§ 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, § 1, eff. Sept. 1, 1999.
§ 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, § 1, eff. Sept. 1, 1999.
§ 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, § 1, eff. Sept. 1, 1999.
§ 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, § 1, eff. Sept. 1, 1999.
§ 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, § 1, eff. Sept. 1, 1999.
SUBCHAPTER B. INJUNCTIVE RELIEF
§ 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, § 1, eff. Sept. 1, 1999.
SUBCHAPTER C. CIVIL PENALTIES
§ 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, § 1, eff. Sept. 1, 1999.
§ 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, § 1, eff. Sept. 1, 1999.
§ 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, § 1, eff. Sept. 1, 1999.
SUBCHAPTER D. CRIMINAL PENALTIES
§ 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, § 1, eff. Sept. 1, 1999.
§ 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, § 1, eff. Sept. 1, 1999. Amended
by Acts 2003, 78th Leg., ch. 202, § 37, eff. June 10, 2003.
§ 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, § 1, eff. Sept. 1, 1999.
§ 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, § 1, eff. Sept. 1, 2003.
§ 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, § 1, eff. Sept. 1, 1999.
§ 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, § 1, eff. Sept. 1, 1999.
§ 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, § 1, eff. Sept. 1, 1999.
§ 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, § 1, eff. Sept. 1, 1999.
§ 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, § 1, eff. Sept. 1, 1999.
§ 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, § 1, eff. Sept. 1, 1999.
§ 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, § 1, eff. Sept. 1, 1999.
