1. (a) Following the hearing the administrative law judge shall issue a proposal for decision containing findings of facts and conclusions of law. While the administrative law judge may recommend a sanction, findings of fact and conclusions of law are inappropriate for sanction recommendations, and sanction recommendations in the form of findings of fact and conclusions of law are an improper application of applicable law and these rules. In all cases, the commission or executive director has the discretion to impose the sanction that best accomplishes the commission's legislatively-assigned enforcement goals. The commission or executive director is the ultimate arbiter of the proper penalty.
2. (b) The commission, acting through the executive director may, after notice and hearing required by Government Code, Chapter 2001, Administrative Procedure Act, impose an order requiring payment of an administrative penalty or monetary forfeiture in an amount not to exceed $1,000 for each violation of Government Code, Chapter 419, or rule promulgated there under, as provided by Government Code, §419.906.

3. (c) In determining the amount of the administrative penalty or monetary forfeiture the commission or the executive director shall consider:

   1. (1) the seriousness of the violation, including but not limited to the nature, circumstances, extent, and gravity of the prohibited act, and the hazard or potential hazard created to the health and safety of the public;
   2. (2) the economic damage to property or the public's interests or confidences caused by the violation;
   3. (3) the history of previous violations;
   4. (4) any economic benefit gained through the violation;
   5. (5) the amount necessary to deter future violations;
   6. (6) the demonstrated good faith of the person, including efforts taken by the alleged violator to correct the violation;
   7. (7) the economic impact of imposition of the penalty or forfeiture on the person; and
   8. (8) any other matters that justice may require.
4. (d) The commission or executive director retains the right to increase or decrease the amount of an administrative penalty based on the circumstances in each case. In particular, the commission or executive director may increase the amount of administrative penalties when the respondent has committed multiple violations (e.g. some combination of different violations).
5. (e) Because it is the policy of the commission to pursue expeditious resolution of complaints when appropriate, administrative penalties in uncontested cases may be less than the amounts assessed in contested cases. Among other reasons, this may be because the respondent admits fault, takes steps to rectify matters, timely responds to commission concerns, or identified mitigating circumstances, and because settlements avoid additional administrative costs.
6. (f) The commission or executive director may impose an administrative penalty alone or in addition to other permitted sanctions.

Source Note:The provisions of this §401.105 adopted to be effective March 8, 2001, 26 TexReg 2040; amended to be effective February 26, 2015, 40 TexReg 826.