1. (a) A notice of violation (NOV) is a formal notice issued to a system participant by the commission under Texas Labor Code §415.032 when the commission has found that the system participant has committed an administrative violation and the commission seeks to assess an administrative penalty.

2. (b) A NOV shall include:

   1. (1) a summary of the duty that the commission believes that the charged system participant failed to fulfill or to timely fulfill;
   2. (2) a summary of the facts that establish that a violation occurred;
   3. (3) a description of the sanction (such as an administrative penalty) that the commission intends to assess in accordance with the Act and this Chapter; and
   4. (4) information about the rights, obligations, and procedures for the charged system participant to file a written answer or request a hearing.
3. (c) The charged system participant shall file a written answer to the NOV not later than the twentieth day after the day the notice is received. The answer shall either consent to the proposed sanction, and remit the amount of the penalty, if any, or request a hearing by being filed with the commission's chief clerk of proceedings.
4. (d) Failure to respond to a NOV in 20 days, absent good cause, is deemed consent to the penalty.
5. (e) In an investigation where both an administrative violation and a criminal prosecution are possible, the commission may, at its discretion, postpone action on the administrative violation until the criminal prosecution is completed.

6. (f) As an alternative to imposing a sanction such as an administrative penalty on a charged system participant, the commission may, at its discretion, provide formal notice of the violation through a Warning Letter. A Warning Letter shall:

   1. (1) include a summary of the duty that the commission believes that the charged system participant failed to fulfill or timely fulfill;
   2. (2) identify the facts that establish that a violation occurred; and
   3. (3) inform the charged system participant that subsequent noncompliance of the same sort may be deemed to be a repeated administrative violation, a pattern of practice, and/or a willful violation, any of which will be subject to sanction.

7. (g) Prior to issuing a NOV or Warning Letter, the commission may issue a Notice of Intent (NOI) that allows a system participant, who it appears has committed a violation, to provide feedback so the commission can make a final decision regarding the possible violation. The NOI:

   1. (1) shall be accompanied by a copy of the commission's penalty calculation worksheet and shall include a summary of the duty that the commission believes that the charged system participant failed to fulfill or timely fulfill.
   2. (2) shall identify the facts that establish that a violation occurred; and
   3. (3) may offer the system participant the opportunity to enter into a settlement agreement.

8. (h) The commission may, at its discretion, enter into a settlement agreement with the violator. A settlement agreement may be entered into before or after issuance of a NOV. The settlement agreement shall require the violator to:

   1. (1) waive the right to appeal either the commission's violation finding or the commission's use of the finding to increase penalty amounts of other similar violations;
   2. (2) come into compliance on the violation (if the commission alleges that there was continued noncompliance);
   3. (3) agree to review the causes of the violation and take action as necessary to improve compliance; and
   4. (4) pay one-half the penalty calculated in accordance with this chapter.

Source Note:The provisions of this §180.8 adopted to be effective July 29, 1991, 16 TexReg 3941; amended to be effective December 4, 1995, 20 TexReg 9717; amended to be effective September 14, 2003, 28 TexReg 7711.