CHAPTER 14. CONSUMER CREDIT COMMISSIONER - Texas Statutes

FINANCE CODE

TITLE 2. FINANCIAL REGULATORY AGENCIES

CHAPTER 14. CONSUMER CREDIT COMMISSIONER

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 14.001. DEFINITIONS. (a) In this chapter:

(1) "Document" includes books, accounts, correspondence,

records, and papers.

(2) "Office" means the Office of Consumer Credit Commissioner.

(b) The definitions provided by Section 341.001 apply to this

chapter.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

SUBCHAPTER B. OPERATION OF OFFICE

Sec. 14.051. CONSUMER CREDIT COMMISSIONER. (a) The finance

commission shall appoint the commissioner.

(b) The commissioner:

(1) serves at the will of the commission; and

(2) is subject to orders and directions of the commission.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Amended by Acts 2001, 77th Leg., ch. 867, Sec. 17, eff. Sept. 1,

2001.

Sec. 14.052. DIVISION OF CONSUMER PROTECTION. The division of

consumer protection is a division in the office and is under the

direction of the commissioner.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 14.054. OATH OF OFFICE. Before assuming the duties of

office, the commissioner and each assistant commissioner,

examiner, and other employee of the office must take an oath of

office.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Amended by Acts 2003, 78th Leg., ch. 285, Sec. 7, eff. Sept. 1,

2003.

Sec. 14.055. LIABILITY. (a) The commissioner or an assistant

commissioner, examiner, or other employee of the office is not

personally liable for damages arising from the person's official

act or omission unless the act or omission is corrupt or

malicious.

(b) The attorney general shall defend an action brought against

a person because of an official act or omission under Subsection

(a) regardless of whether the person has terminated service with

the office when the action is instituted.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 14.056. CONFLICT OF INTEREST. (a) In this section, "Texas

trade association" means a cooperative and voluntarily joined

association of business or professional competitors in this state

designed to assist its members and its industry or profession in

dealing with mutual business or professional problems and in

promoting their common interest.

(b) A person may not be an employee of the office employed in a

"bona fide executive, administrative, or professional capacity,"

as that phrase is used for purposes of establishing an exemption

to the overtime provisions of the federal Fair Labor Standards

Act of 1938 (29 U.S.C. Section 201 et seq.), and its subsequent

amendments, if:

(1) the person is an officer, employee, or paid consultant of a

Texas trade association in an industry regulated by the office;

or

(2) the person's spouse is an officer, manager, or paid

consultant of a Texas trade association in an industry regulated

by the office.

(c) A person may not act as the general counsel to the office if

the person is required to register as a lobbyist under Chapter

305, Government Code, because of the person's activities for

compensation on behalf of a profession related to the operation

of the office.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Amended by Acts 2001, 77th Leg., ch. 1235, Sec. 1, eff. Sept. 1,

2001.

Sec. 14.057. PERFORMANCE EVALUATIONS; MERIT PAY. (a) The

commissioner or a person designated by the commissioner shall

develop a system of annual employee performance evaluations based

on measurable job tasks.

(b) Merit pay for employees of the office must be based on the

system established under this section.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 14.058. EQUAL EMPLOYMENT OPPORTUNITY. (a) The

commissioner or the commissioner's designee shall prepare and

maintain a written policy statement that implements a program of

equal employment opportunity to ensure that all personnel

decisions are made without regard to race, color, disability,

sex, religion, age, or national origin.

(b) The policy statement must include:

(1) personnel policies, including policies relating to

recruitment, evaluation, selection, training, and promotion of

personnel, that show the intent of the office to avoid the

unlawful employment practices described by Chapter 21, Labor

Code; and

(2) an analysis of the extent to which the composition of the

office's personnel is in accordance with state and federal law

and a description of reasonable methods to achieve compliance

with state and federal law.

(c) The policy statement must:

(1) be updated annually;

(2) be reviewed by the state Commission on Human Rights for

compliance with Subsection (b)(1); and

(3) be filed with the governor's office.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Amended by Acts 2001, 77th Leg., ch. 1235, Sec. 2, eff. Sept. 1,

2001.

Sec. 14.059. INTRA-AGENCY CAREER LADDER. (a) The commissioner

or a person designated by the commissioner shall develop an

intra-agency career ladder program.

(b) The program must require intra-agency posting of all

nonentry level positions for at least 10 days before public

posting.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 14.061. COST OF AUDIT. The cost of an audit of the office

under Chapter 321, Government Code, shall be paid to the state

auditor from the funds of the office.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 14.062. CONSUMER INFORMATION AND COMPLAINTS. (a) The

office shall maintain a file on each written complaint filed with

the office. The file must include:

(1) the name of the person who filed the complaint;

(2) the date the complaint is received by the office;

(3) the subject matter of the complaint;

(4) the name of each person contacted in relation to the

complaint;

(5) a summary of the results of the review or investigation of

the complaint; and

(6) an explanation of the reason the file was closed, if the

office closed the file without taking action other than to

investigate the complaint.

(b) The office shall provide to the person filing the complaint

and to each person who is a subject of the complaint a copy of

the office's policies and procedures relating to complaint

investigation and resolution.

(c) The office, at least quarterly until final disposition of

the complaint, shall notify the person filing the complaint and

each person who is a subject of the complaint of the status of

the investigation unless the notice would jeopardize an

undercover investigation.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Amended by Acts 2001, 77th Leg., ch. 1235, Sec. 3, eff. Sept. 1,

2001.

Sec. 14.063. APPLICATION OF OPEN MEETINGS LAW. The office is a

governmental body subject to Chapter 551, Government Code.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 14.064. CONSUMER INFORMATION. The commissioner shall:

(1) prepare information of consumer interest describing:

(A) the regulatory functions of the office; and

(B) the office's procedures by which consumer complaints are

filed with and resolved by the office; and

(2) make the information available to the public and appropriate

state agencies.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 14.065. OFFICE EMPLOYEES. The commissioner may appoint,

remove, and prescribe the duties of assistant commissioners,

examiners, and other employees as necessary to maintain and

operate the office, including the division of consumer

protection.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 14.066. SUNSET PROVISION. The office is subject to Chapter

325, Government Code (Texas Sunset Act). Unless continued in

existence as provided by that chapter, the office is abolished

September 1, 2013.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Amended by Acts 2001, 77th Leg., ch. 1235, Sec. 4, eff. Sept. 1,

2001.

SUBCHAPTER C. POWERS AND DUTIES OF COMMISSIONER

Sec. 14.101. GENERAL DUTIES OF COMMISSIONER. The commissioner

shall enforce this chapter, Subtitles B and C of Title 4, and

Chapter 394 in person or through an assistant commissioner,

examiner, or other employee of the office.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 14.102. EDUCATIONAL AND DEBT COUNSELING PROGRAMS. The

commissioner shall coordinate, encourage, and assist public and

private agencies, organizations, groups, and consumer credit

institutions in developing and operating voluntary educational

and debt counseling programs designed to promote prudent and

beneficial use of consumer credit by residents of this state.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 14.103. CONSUMER PROTECTION PROGRAMS. The commissioner,

through the division of consumer protection, shall coordinate,

encourage, and assist public and private agencies, organizations,

groups, and consumer protection institutions in developing and

operating voluntary educational consumer protection programs

designed to promote prudent and informed consumer action by

residents of this state.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 14.104. LENDER CONTRACTS. A written contract of an

authorized lender subject to regulation by the office must

contain the name, mailing address, and telephone number of the

office.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 14.105. GIFTS AND GRANTS. (a) The commissioner may accept

money, gifts, or grants on behalf of the state for a purpose

related to a consumer credit educational opportunity or to assist

a local government in the exercise of its police power unless the

acceptance is prohibited by Subsection (b) or other law.

Acceptance and use of money under this subsection must be

approved by the finance commission.

(b) The commissioner may not accept or use money offered by:

(1) a person for investigating or prosecuting a matter; or

(2) a person who is affiliated with an industry that is

regulated by the finance commission.

(c) Money received under Subsection (a) may be appropriated only

for the purpose for which the money was given.

(d) The commissioner is not prohibited by Subsection (b) from

receiving and using money from a person under the jurisdiction of

the commissioner if the receipt and use is expressly authorized

by other law.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 14.106. INFORMATION REGARDING EMPLOYMENT REQUIREMENTS. The

commissioner or the commissioner's designee shall provide to

agency employees, as often as necessary, information regarding

the requirements for employment under this chapter, including

information regarding a person's responsibilities under

applicable laws relating to standards of conduct for state

employees.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Amended by Acts 2001, 77th Leg., ch. 1235, Sec. 6, eff. Sept. 1,

2001.

Sec. 14.107. FEES. (a) The finance commission shall establish

reasonable and necessary fees for carrying out the commissioner's

powers and duties under this chapter, Title 4, and Chapters 371,

392, and 394 and under Chapters 51, 302, 601, and 621, Business

& Commerce Code.

(b) The finance commission by rule shall set the fees for

licensing and examination under Chapter 342, 347, 348, 351, or

371 at amounts or rates necessary to recover the costs of

administering those chapters. The rules may provide that the

amount of a fee charged to a license holder is based on the

volume of the license holder's regulated business and other key

factors. The commissioner may provide for collection of a single

annual fee from a person licensed under Chapter 342, 347, 348,

351, or 371 to include amounts due for both licensing and

examination.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Amended by Acts 2001, 77th Leg., ch. 867, Sec. 18, eff. Sept. 1,

2001; Acts 2001, 77th Leg., ch. 1235, Sec. 7, eff. Sept. 1, 2001.

Amended by:

Acts 2007, 80th Leg., R.S., Ch.

885, Sec. 2.15, eff. April 1, 2009.

Acts 2009, 81st Leg., R.S., Ch.

1104, Sec. 2, eff. June 19, 2009.

Sec. 14.108. INTERPRETATIONS OF LAW. (a) The commissioner may

issue an interpretation of this chapter or Subtitle A or B, Title

4, after approval of the interpretation by the finance

commission.

(b) The provisions of Chapter 2001, Government Code, that relate

to the adoption of an administrative rule do not apply to the

issuance of an interpretation under this section.

(c) The commissioner shall publish in the Texas Register, in a

form prescribed by the finance commission, a request for an

interpretation not later than the 10th day after the date on

which the commissioner receives the request.

(d) An interpretation approved by the finance commission shall

be published in the Texas Register, in a form prescribed by the

finance commission, not later than the 10th day after the date on

which the finance commission has approved the interpretation.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

SUBCHAPTER D. CRIMINAL HISTORY RECORD INFORMATION

Sec. 14.151. OBTAINING INFORMATION. (a) The commissioner or an

assistant commissioner, examiner, or other employee of the office

shall obtain criminal history record information maintained by

the Department of Public Safety, the Federal Bureau of

Investigation Identification Division, or another law enforcement

agency relating to:

(1) an applicant for a license issued by the commissioner; or

(2) a person licensed under the commissioner's authority.

(b) For an applicant or license holder that is a business

entity, the criminal history record information requirement of

this section applies to an officer, director, owner, or employee

of the entity or another person having a substantial relationship

with the entity.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 14.152. FINGERPRINT REQUIREMENT; PENALTY. The commissioner

may refuse to grant a license to, or may suspend or revoke the

license of, an applicant or license holder who fails to provide,

on request, a complete set of legible fingerprints on a

fingerprint card format approved by the Department of Public

Safety and the Federal Bureau of Investigation.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 14.153. ACTION BY LAW ENFORCEMENT AGENCIES. (a) The

commissioner shall send fingerprints and other identification

information to the Department of Public Safety to be retained by

that department.

(b) The Department of Public Safety shall use the information to

perform a search of the state criminal history files and shall

report the findings to the office.

(c) The Department of Public Safety shall send fingerprints and

other identification information to the Federal Bureau of

Investigation so that the bureau can perform a search of its

criminal history files.

(d) The Department of Public Safety shall notify the office of

activity reported to the crime records division that identifies a

person with a record maintained under this subchapter.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 14.154. CONFIDENTIALITY. (a) Criminal history record

information received by the office is confidential and is for the

exclusive use of the office.

(b) Except on court order or as provided by Section 14.155(a),

the information may not be released or otherwise disclosed to

another person.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 14.155. DISCLOSURE; OFFENSE. (a) The office may not

provide a person being investigated under this subchapter with a

copy of the person's criminal history record obtained from the

Department of Public Safety, Federal Bureau of Investigation

Identification Division, or other law enforcement agency. This

subchapter does not prevent the office from:

(1) disclosing to the person being investigated a date and place

of arrest or an offense or disposition contained in the criminal

history record; or

(2) disclosing criminal history record information to, and

discussing the information with, an authorized law enforcement

agency with an interest in the person to whom the information

relates.

(b) A person commits an offense if the person releases or

discloses information received under this subchapter except on

court order or as provided by Subsection (a). An offense under

this subsection is a Class A misdemeanor.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 14.156. RECOVERY OF COSTS. In addition to an investigation

fee paid to the commissioner by a license applicant, the

commissioner is entitled to recover from an applicant or license

holder the cost of processing an inquiry to determine whether the

person has a criminal history record.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 14.157. RULES. The finance commission shall adopt rules

governing the custody and use of information obtained under this

subchapter.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Amended by Acts 2001, 77th Leg., ch. 867, Sec. 19, eff. Sept. 1,

2001.

SUBCHAPTER E. INVESTIGATION AND ENFORCEMENT

Sec. 14.201. INVESTIGATION AND ENFORCEMENT AUTHORITY.

Investigative and enforcement authority under this subchapter

applies only to this chapter, Subtitles B and C of Title 4, and

Chapter 394.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 14.2015. CONFIDENTIALITY OF CERTAIN INFORMATION. (a)

Except as provided by Subsection (b), information or material

obtained or compiled by the commissioner in relation to an

examination by the commissioner or the commissioner's

representative of a license holder or registrant under Subtitle B

or C, Title 4, or Chapter 394 is confidential and may not be

disclosed by the commissioner or an officer or employee of the

Office of Consumer Credit Commissioner, including:

(1) information obtained from a license holder or registrant

under Subtitle B or C, Title 4, or Chapter 394;

(2) work performed by the commissioner or the commissioner's

representative on information obtained from a license holder or

registrant for the purposes of an examination conducted under

Subtitle B or C, Title 4, or Chapter 394;

(3) a report on an examination of a license holder or registrant

conducted under Subtitle B or C, Title 4, or Chapter 394; and

(4) any written communications between the license holder or

registrant, as applicable, and the commissioner or the

commissioner's representative relating to or referencing an

examination conducted under Subtitle B or C, Title 4, or Chapter

394.

(b) The commissioner or the commissioner's representative may

disclose the confidential information or material described by

Subsection (a):

(1) to a department, agency, or instrumentality of this state or

the United States if the commissioner considers disclosure to be

necessary or proper to the enforcement of the laws of this state

or the United States and in the best interest of the public;

(2) if the license holder or registrant consents to the release

of the information or has published the information contained in

the release; or

(3) if the commissioner determines that release of the

information is required for an administrative hearing.

Added by Acts 2009, 81st Leg., R.S., Ch.

1382, Sec. 3, eff. September 1, 2009.

Sec. 14.202. REQUEST FOR INFORMATION; FAILURE TO COMPLY. (a)

On receipt of a written complaint or other reasonable cause to

believe that a person is violating a statute listed by Section

14.201, the commissioner may require the person to furnish

information regarding a specific loan, retail transaction, or

business practice to which the violation relates.

(b) If a person fails to furnish the information requested by

the commissioner, the commissioner may conduct an investigation

to determine whether a violation exists.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 14.203. ISSUANCE OF SUBPOENA OR SUMMONS. (a) During an

investigation, the commissioner may issue a subpoena or summons

that is addressed to a peace officer of this state and requires

the attendance and testimony of a witness or the production of a

document.

(b) A document that is necessary to continue the business of a

person under investigation may not be removed from the office or

place of business of that person, but the commissioner may:

(1) examine, or cause to be examined, the document at the office

or place of business; and

(2) require a copy to be made of a part of the document related

to a matter under investigation.

(c) A copy of a document made under Subsection (b)(2) must be

verified by the affidavit of the person under investigation or by

an officer of that person.

(d) On the commissioner's certification, a copy of a document

made under Subsection (b)(2) is admissible in evidence in an:

(1) investigation or hearing under this subchapter or under a

statute to which this subchapter applies; or

(2) appeal to the district court.

(e) To implement this section, the commissioner may sign a

subpoena, administer an oath or affirmation, examine a witness,

or receive evidence.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 14.204. ENFORCEMENT OF SUBPOENA; CONTEMPT. (a) If a

person disobeys a subpoena or if a witness appearing before the

commissioner refuses to testify, the commissioner may petition

the district court of a jurisdiction in which the person or

witness may be found, and the court on this petition may issue an

order requiring the person or witness to obey the subpoena,

testify, or produce a document relating to the matter in issue,

as applicable. The court shall treat the application in the same

manner as a motion in a civil suit.

(b) The court shall promptly set an application to enforce a

subpoena under Subsection (a) for hearing and shall cause notice

of the application and the hearing to be served on the person to

whom the subpoena is directed. Notice may be served by a peace

officer of this state.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 14.205. INVESTIGATION BY HEARING OFFICER. (a) During an

investigation described by this subchapter, the commissioner may

appoint a hearing officer to conduct the investigation.

(b) On appointment, a hearing officer has the same authority as

the commissioner to conduct the investigation, except that the

hearing officer may not issue an order on the subject of the

investigation.

(c) The commissioner may consider the record of an investigation

conducted before a hearing officer in the same manner and to the

same extent as in a hearing before the commissioner.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 14.206. FEES AND EXPENSES. (a) The fee for serving a

subpoena under this subchapter is the same as that paid a sheriff

or constable for performing a similar service.

(b) A witness required to attend a hearing before the

commissioner shall receive for each day's attendance a fee and a

travel and transportation allowance as authorized by law or a

rule adopted by the finance commission.

(c) A fee under Subsection (b) is not payable until the witness

appears at the hearing.

(d) A disbursement made in payment of a fee under this section

shall be included in, and paid in the same manner that is

provided for, other expenses incurred in the administration and

enforcement of the statutes to which this subchapter applies.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Amended by Acts 2001, 77th Leg., ch. 867, Sec. 20, eff. Sept. 1,

2001.

Sec. 14.207. IMPOSITION OF COSTS ON PARTIES. The commissioner

may impose on a party in interest of record fees, expenses, or

costs incurred in connection with a hearing or may divide the fee

or expense among any or all interested parties as determined by

the commissioner.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 14.208. INJUNCTION; APPEAL. (a) If the commissioner has

reasonable cause to believe that a person is violating a statute

to which this chapter applies, the commissioner, in addition to

any other authorized action, may issue an order to cease and

desist from the violation or an order to take affirmative action,

or both, to enforce compliance. A person may appeal the order to

the finance commission as provided by Subsection (d) or directly

to district court in accordance with Chapter 2001, Government

Code.

(b) If a person against whom an order under this section is made

requests a hearing not later than the 30th day after the date the

order is served, the commissioner shall set and give notice of a

hearing before a hearings officer. The hearing is governed by

Chapter 2001, Government Code. Based on the findings of fact,

conclusions of law, and recommendations of the hearings officer,

the commissioner by order may find whether a violation has

occurred.

(c) If a hearing is not timely requested under Subsection (b),

the order is considered final and becomes enforceable. The

commissioner, after giving notice, may impose against a person

who violates a cease and desist order an administrative penalty

in an amount not to exceed $1,000 for each day of violation. In

addition to any other remedy provided by law, the commissioner on

relation of the attorney general may institute in district court

a suit for injunctive relief and to collect an administrative

penalty. A bond is not required of the commissioner with respect

to injunctive relief granted under this section. In the action,

the court may enter as proper an order awarding a preliminary or

final injunction.

(d) If a party seeks review of the order by the finance

commission, the party shall file a petition for review with the

finance commission not later than the 30th day after the date of

the issuance of the commissioner's decision. The finance

commission may affirm, vacate, or modify an order issued by the

commissioner. A party aggrieved by a final decision of the

finance commission is entitled to judicial review. The party may

appeal the decision of the finance commission by the filing of a

motion for rehearing with the finance commission and then filing

a petition initiating judicial review.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Amended by:

Acts 2005, 79th Leg., Ch.

1018, Sec. 4.01, eff. September 1, 2005.

Sec. 14.209. APPOINTMENT OF RECEIVER. (a) In addition to other

remedies for the enforcement of a restraining order or

injunction, the court in which an action is brought under Section

14.208(b) may impound and appoint a receiver for the defendant's

property and business, including a document relating to the

property or business, as the court considers reasonably necessary

to prevent a violation through use of the property and business.

(b) On appointment and qualification, a receiver has the powers

and duties of a receiver under Chapter 64, Civil Practice and

Remedies Code.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

SUBCHAPTER F. ADMINISTRATIVE PENALTY; RESTITUTION ORDER;

ASSURANCE OF VOLUNTARY COMPLIANCE

Sec. 14.251. ASSESSMENT OF PENALTY; RESTITUTION ORDER. (a) The

commissioner may assess an administrative penalty against a

person who knowingly and wilfully violates or causes a violation

of this chapter, Chapter 394, or Subtitle B, Title 4, or a rule

adopted under this chapter, Chapter 394, or Subtitle B, Title 4.

(b) The commissioner may order a person who violates or causes a

violation of this chapter, Chapter 394, or Subtitle B, Title 4,

or a rule adopted under this chapter, Chapter 394, or Subtitle B,

Title 4, to make restitution to an identifiable person injured by

the violation.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Amended by Acts 1999, 76th Leg., ch. 62, Sec. 7.29, eff. Sept. 1,

1999.

Sec. 14.252. AMOUNT OF PENALTY. (a) The commissioner may

assess an administrative penalty for a violation in an amount not

to exceed $1,000 for each day of the violation.

(b) The aggregate amount of penalties under this subchapter that

the commissioner may assess against a person during one calendar

year may not exceed the lesser of:

(1) $100,000; or

(2) an amount that is equal to the greater of five percent of

the net worth of the creditor or $5,000.

(c) In determining the amount of an administrative penalty, the

commissioner shall consider:

(1) the seriousness of the violation, including the nature,

circumstances, extent, and gravity of the prohibited act;

(2) the extent of actual or potential harm to a third party;

(3) the history of violations;

(4) the amount necessary to deter future violations;

(5) efforts to correct the violation; and

(6) any other matter that justice may require.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Amended by:

Acts 2005, 79th Leg., Ch.

1018, Sec. 4.03, eff. September 1, 2005.

Sec. 14.253. REPORT ON VIOLATION. If the commissioner

determines that a violation occurred, the commissioner may issue

a report that states:

(1) the facts on which the determination is based; and

(2) the commissioner's recommendation on imposition of a

penalty, including a recommendation on the amount of the penalty.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 14.254. NOTICE OF REPORT ON VIOLATION AND PENALTY

RECOMMENDATION. (a) Not later than the 14th day after the date

on which a report is issued, the commissioner shall give written

notice of the report by certified mail to the person charged with

committing or causing the violation.

(b) The notice must:

(1) include a brief summary of the alleged violation;

(2) include a statement of the amount of the recommended

penalty; and

(3) inform the person that the person has a right to a hearing

on the occurrence of the violation, the amount of the penalty, or

both.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 14.255. RESPONSE OF PERSON RECEIVING NOTICE. Not later

than the 20th day after the date on which a person receives

notice under Section 14.254, the person may:

(1) accept in writing the determination and recommended penalty

of the commissioner; or

(2) make a written request for a hearing on the occurrence of

the violation, the amount of the penalty, or both.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 14.256. ACCEPTANCE OF PENALTY. If a person accepts the

determination and recommended penalty of the commissioner, the

commissioner by order shall approve the determination and impose

the recommended penalty.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 14.257. HEARING ON PENALTY; ORDER. (a) If a person

requests a hearing or fails to give a timely response to the

notice, the commissioner shall set a hearing and give notice of

the hearing to the person by certified mail.

(b) The hearing shall be held by a hearings officer who shall

make findings of fact and conclusions of law and promptly issue a

proposal for a decision about the occurrence of the violation and

the amount of a proposed penalty.

(c) According to the findings of fact, conclusions of law, and

proposal for a decision, the commissioner by order may find:

(1) that a violation has occurred and impose a penalty; or

(2) a violation has not occurred.

(d) Notice of the commissioner's order, given to the person

under Chapter 2001, Government Code, must include a statement of

the person's right to judicial review of the order.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 14.258. STAY OF PENALTY; SUIT BY ATTORNEY GENERAL. (a)

The enforcement of the penalty may be stayed during the time the

order is under judicial review if the person pays the penalty to

the clerk of the court or files a supersedeas bond with the court

in the amount of the penalty. A person who cannot afford to pay

the penalty or file the bond may stay the enforcement by filing

an affidavit in the manner required by the Texas Rules of Civil

Procedure for a party who cannot afford to file security for

costs, subject to the right of the commissioner to contest the

affidavit as provided by those rules.

(b) The attorney general may sue to collect the penalty.

(c) A court that sustains the occurrence of a violation may

uphold or reduce the amount of the administrative penalty and

order the person to pay that amount.

(d) A court that does not sustain the occurrence of a violation

shall order that no penalty is owed.

(e) If a person has paid a penalty and a court in a final

judgment reduces or does not uphold the amount, the court shall

order that the appropriate amount plus accrued interest be

remitted to the person. The interest rate is the rate authorized

by Chapter 304, and interest shall be paid for the period

beginning on the date the penalty was paid and ending on the date

the penalty is remitted.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Amended by:

Acts 2005, 79th Leg., Ch.

1018, Sec. 4.04, eff. September 1, 2005.

Sec. 14.259. RECOVERY OF COSTS. In addition to the

administrative penalty or restitution amount, the court may

authorize the commissioner to recover from a person who pays an

administrative penalty or restitution amount, or both, reasonable

expenses incurred in obtaining the ordered amount, including the

cost of investigation, witness fees, and deposition expenses.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 14.260. ADMINISTRATIVE PROCEDURE ACT. A proceeding under

this subchapter is subject to Chapter 2001, Government Code.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 14.261. ACCEPTANCE OF ASSURANCE. (a) In administering

this chapter, the commissioner may accept assurance of voluntary

compliance from a person who is engaging in or has engaged in an

act or practice in violation of:

(1) this chapter or a rule adopted under this chapter;

(2) Chapter 394; or

(3) Subtitle B, Title 4, or a rule adopted under Subtitle B,

Title 4.

(b) The assurance must be in writing and be filed with the

commissioner.

(c) The commissioner may condition acceptance of an assurance of

voluntary compliance on the stipulation that the person offering

the assurance restore to a person in interest money that may have

been acquired by the act or practice described by Subsection (a).

(d) The finance commission may adopt rules to establish the form

of the assurance or require certain information be contained in

an assurance.

Added by Acts 2005, 79th Leg., Ch.

1018, Sec. 4.05, eff. September 1, 2005.

Sec. 14.262. EFFECT OF ASSURANCE. (a) An assurance of

voluntary compliance is not an admission of a violation of:

(1) this chapter or a rule adopted under this chapter;

(2) Chapter 394; or

(3) Subtitle B, Title 4, or a rule adopted under Subtitle B,

Title 4.

(b) Unless an assurance of voluntary compliance is rescinded by

agreement or voided by a court for good cause, a subsequent

failure to comply with the assurance is prima facie evidence of a

violation of:

(1) this chapter or a rule adopted under this chapter;

(2) Chapter 394; or

(3) Subtitle B, Title 4, or a rule adopted under Subtitle B,

Title 4.

Added by Acts 2005, 79th Leg., Ch.

1018, Sec. 4.05, eff. September 1, 2005.

Sec. 14.263. REOPENING. A matter closed by the filing of an

assurance of voluntary compliance may be reopened at any time.

Added by Acts 2005, 79th Leg., Ch.

1018, Sec. 4.05, eff. September 1, 2005.

Sec. 14.264. RIGHT TO BRING ACTION NOT AFFECTED. (a) An

assurance of voluntary compliance does not affect the right of an

individual to bring an action, except as provided in Chapter 349

and except that the right of an individual in relation to money

received according to a stipulation under Section 14.261(c) is

governed by the terms of the assurance.

(b) A person entering into an assurance of voluntary compliance

may, not later than the 60th day after the date of filing of the

assurance, correct the violation under Section 349.201. Amounts

paid as restitution and other acts taken in accordance with an

assurance of voluntary compliance shall be considered for

purposes of determining whether the obligor has made a correction

under Subchapter C, Chapter 349. With respect to corrections of

violations or possible violations relating to matters addressed

in the assurance of voluntary compliance, the date of filing of

the assurance is considered to be the date of:

(1) actual discovery of the violation or possible violation;

(2) written notice; and

(3) filing of the action alleging the violation.

Added by Acts 2005, 79th Leg., Ch.

1018, Sec. 4.05, eff. September 1, 2005.

SUBCHAPTER G. JUDICIAL REVIEW

Sec. 14.301. APPEAL OF FINAL DECISION OF COMMISSIONER. A party

in interest aggrieved by a final decision of the commissioner is

entitled to judicial review.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Sec. 14.302. APPEAL OF LICENSE WITHHOLDING OR REVOCATION. An

appeal of a decision of the commissioner refusing to grant a

license to an applicant or revoking the license of a license

holder shall be under the substantial evidence rule as provided

by Chapter 2001, Government Code.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.

Amended by Acts 2001, 77th Leg., ch. 1235, Sec. 8, eff. Sept. 1,

2001.

Sec. 14.303. STAY OF ORDER PENDING APPEAL. On a showing of good

cause, the commissioner or the reviewing court may enter an order

staying the effect of a final decision of the commissioner

pending appeal by a party in interest.

Acts 1997, 75th Leg., ch. 1008, Sec. 1, eff. Sept. 1, 1997.