Information about Complaint Investigation and Resolution
Receipt of Complaint
When a written complaint is received in the Enforcement Division, the complaint is assigned to the Intake Section for review. At that time, a postcard is sent to the person who filed the complaint (the Complainant), simply to acknowledge receipt of the complaint. The Intake Section performs research and analysis as necessary to determine (1) if TDLR has legal jurisdiction and (2) whether a violation has been alleged in the complaint. In the course of this review, the Intake Section may request additional information from the Complainant.
If Intake determines that TDLR does not have jurisdiction in the matter or that the complaint does not allege a violation, a letter is sent to the Complainant, stating that no investigation will be conducted and explaining the reason why. The original complaint and a copy of this letter are retained in our files for one year.
Investigation
If Intake determines that the matter is within TDLR’s jurisdiction and a violation has been alleged, a case is opened for investigation. An opening letter is issued to the Complainant and to the Respondent, informing them that an investigation has been initiated. The open case is given a complaint number for identification purposes, and is assigned to an investigator for further action. Upon initially reviewing the case, the investigator may, at his discretion, request a written response to the complaint from the Respondent (i.e. the person against whom the complaint was filed). As a standard practice, the investigator will interview the Complainant, the Respondent, and any pertinent witnesses, either by telephone or in-person contact. The investigator will also gather copies of any documents relevant to the case. After the investigator completes the investigation, he/she submits a detailed report of the facts of the case to a prosecuting attorney. All parties are notified by letter at least quarterly on the status of the case until it is resolved.
Resolution
The prosecutor makes the determination on how the case will be resolved. If the prosecutor determines that formal enforcement action is not warranted, due to insufficient evidence or other reasons, he will close the case informally by issuing a closing letter. He may also issue a warning letter to the Respondent to come into compliance with the applicable law. The prosecutor may proceed with formal enforcement action by issuing a Notice of Alleged Violation (NOAV) seeking administrative penalties from the Respondent and/or sanctions against the Respondent’s license. An administrative penalty is a monetary fine paid by the Respondent to the State of Texas . A sanction is an action upon the Respondent’s license, and may include suspension of the license, probation, a written reprimand, or outright revocation of the license. Administrative penalties and sanctions applicable to specific violations within each TDLR program are reflected in the TDLR Enforcement Plan, which may be found on the internet at http://www.license.state.tx.us/enforcement.htm. Factors used to determine the amount of penalty or level of sanction include:
(1) The severity or seriousness of the violation.
(2) Whether the violation was willful or intentional.
(3) Whether the Respondent acted in good faith to avoid or mitigate the violation, or to correct the violation after it became apparent.
(4) Whether the Respondent has engaged in similar violations in the past.
(5) The level of penalty or sanction necessary to deter future violations.
(6) Any other matter that justice may require.
Agreed Orders
When an NOAV is sent, it may contain a settlement offer. If an agreement is reached and the Respondent fulfills the requirements of the agreement, an Agreed Order is issued by the Executive Director of TDLR. Efforts to comply with the Agreed Order and/or payment for penalties issued are monitored by the Enforcement Division’s Compliance Officer until the requirements of the Order are completed.
Default Orders
If NO agreement is reached, and the Respondent does not request a hearing IN WRITING within 20 days after receiving the NOAV, a Default Order granting penalties and/or sanctions may be entered against the Respondent without first conducting a hearing.
Hearing
If the Respondent timely requests a hearing in writing, the hearing is scheduled before the State Office of Administrative Hearings (SOAH). Parties are advised of the hearing date and time. If the Respondent does not appear for the hearing, TDLR will ordinarily request that a Default Order be issued. The case is heard by a SOAH Administrative Law Judge, who submits a Proposal for Decision (PFD) to all parties and to the Texas Commission of Licensing and Regulation. The parties have 20 days after the date the PFD was issued to file written exceptions to the PFD, and 10 additional days to file responses to the Exceptions.
Commission Meeting
All parties are notified of the date of the Commission meeting, at which time the Commission will consider adopting the decision recommended by the Administrative Law Judge. At the Commission meeting, the Respondent may address the Commission regarding the PFD. The Commission rules on the PFD and issues a Final Order. If the Respondent does not agree with the Final Order, he has 20 days to file a motion for rehearing. If no motion is filed, the Final Order becomes final on the 21 st day after it was issued.
Rehearing and Judicial Review
If a motion for rehearing is filed by a Respondent, the Commission may grant or deny the motion, or may take no action, in which case the motion gets overruled by operation of law after 45 days. If a motion for rehearing is denied, the Respondent has 30 days following the denial to file a request for judicial review in District Court. If a request for judicial review is filed, the agency is represented in District Court by the Attorney General of the State of Texas.