CHAPTER 566. PENALTIES AND ENFORCEMENT PROVISIONS

OCCUPATIONS CODE

TITLE 3. HEALTH PROFESSIONS

SUBTITLE J. PHARMACY AND PHARMACISTS

CHAPTER 566. PENALTIES AND ENFORCEMENT PROVISIONS

SUBCHAPTER A. ADMINISTRATIVE PENALTY

Sec. 566.001. IMPOSITION OF PENALTY. The board may impose an

administrative penalty on 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, Sec. 1, eff. Sept. 1, 1999.

Sec. 566.002. AMOUNT OF PENALTY. (a) The amount of the

administrative penalty may not exceed $5,000 for each violation,

including a violation involving the diversion of a controlled

substance.

(b) Each day a violation continues or occurs is a separate

violation for purposes of imposing the penalty.

(c) The amount, to the extent possible, shall be based on:

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

circumstances, extent, and gravity of any prohibited act, and 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.

(d) The board by rule shall adopt an administrative penalty

schedule for violations of this subtitle or board rules to ensure

that the amounts of penalties imposed are appropriate to the

violation.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended by:

Acts 2005, 79th Leg., Ch.

1345, Sec. 30, eff. September 1, 2005.

Sec. 566.003. NOTICE OF VIOLATION. (a) If the board by order

determines that a violation occurred and imposes an

administrative penalty, the board shall give notice of the

board's order to the person found to have committed the

violation.

(b) The notice must include a statement of the person's right to

judicial review of the order.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec. 566.004. OPTIONS FOLLOWING DECISION: PAY OR APPEAL. (a)

Not later than the 30th day after the date the board's order

becomes final, the person shall:

(1) pay the administrative penalty;

(2) pay the penalty and file a petition for judicial review

contesting the fact of the violation, the amount of the penalty,

or both; or

(3) without paying the penalty, file a petition for judicial

review contesting the fact 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 that is approved by

the court and that:

(i) is for the amount of the penalty; and

(ii) is effective until 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 a sworn 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, Sec. 1, eff. Sept. 1, 1999.

Sec. 566.005. 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, Sec. 1, eff. Sept. 1, 1999.

Sec. 566.006. DETERMINATION BY COURT. (a) If the court

sustains the determination that a violation occurred on appeal,

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, Sec. 1, eff. Sept. 1, 1999.

Sec. 566.007. REMITTANCE OF PENALTY AND INTEREST. (a) If after

judicial review, the administrative penalty is reduced or is not

upheld 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

upheld or order the release of the bond after the person pays the

penalty imposed if the person gave 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 shall be 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, Sec. 1, eff. Sept. 1, 1999.

Sec. 566.008. EFFECT OF SUBCHAPTER. This subchapter does not

limit the board's ability to impose an administrative penalty

under a consent order entered in accordance with board rules and

requirements adopted under Section 565.056.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec. 566.009. ADMINISTRATIVE PROCEDURE. (a) The board by rule

shall prescribe procedures, consistent with provisions of Chapter

2001, Government Code, relating to contested cases, by which the

board may impose an administrative penalty.

(b) Chapter 2001, Government Code, applies to a proceeding under

this subchapter.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

SUBCHAPTER B. INJUNCTIVE RELIEF

Sec. 566.051. INJUNCTIVE RELIEF. (a) The attorney general at

the request of the board may petition a district court for an

injunction to prohibit a person who is violating this subtitle

from continuing the violation.

(b) Venue in a suit for injunctive relief is in Travis County.

(c) After application and a finding that a person is violating

this subtitle, the district court shall grant the injunctive

relief the facts warrant.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Amended by:

Acts 2005, 79th Leg., Ch.

1345, Sec. 31, eff. September 1, 2005.

Sec. 566.052. CEASE AND DESIST ORDER. (a) If it appears to the

board that a person is engaging in an act or practice that

constitutes the practice of pharmacy without a license or

registration under this subtitle, the board, after notice and

opportunity for a hearing, may issue a cease and desist order

prohibiting the person from engaging in the activity.

(b) A violation of an order issued under this section

constitutes grounds for imposing an administrative penalty under

Subchapter A.

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

1345, Sec. 32, eff. September 1, 2005.

SUBCHAPTER C. CIVIL PENALTY

Sec. 566.101. CIVIL PENALTY. (a) A person who violates the

license requirements of this subtitle is liable to the state for

a civil penalty not to exceed $1,000 for each day the violation

continues.

(b) A person found by the board to have unlawfully engaged in

the practice of pharmacy or unlawfully operated a pharmacy is

subject to a civil penalty under this section.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec. 566.102. COLLECTION BY ATTORNEY GENERAL. At the request of

the board, the attorney general shall institute an action to

collect a civil penalty from a person who has violated this

subtitle or any rule adopted under this subtitle.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec. 566.103. COLLECTION BY DISTRICT, COUNTY, OR CITY ATTORNEY.

(a) If the attorney general fails to take action before the 31st

day after the date of referral from the board under Section

566.102, the board shall refer the case to the local district

attorney, county attorney, or city attorney.

(b) The district attorney, county attorney, or city attorney

shall file suit in a district court to collect and retain the

penalty.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

Sec. 566.104. VENUE. Venue for a suit under this subchapter is

in Travis County.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.

SUBCHAPTER D. CRIMINAL OFFENSES

Sec. 566.151. OFFENSES; CRIMINAL PENALTY. (a) A person commits

an offense if the person violates this subtitle or any rule

adopted under this subtitle relating to unlawfully engaging in

the practice of pharmacy or unlawfully operating a pharmacy.

(b) A person commits an offense if the person knowingly violates

the licensing requirements of this subtitle or Section 558.001,

558.002, or 560.002.

(c) A person commits an offense if the person violates Section

560.001 or 560.003.

(d) Each day of violation under Subsection (b) or (c) is a

separate offense.

(e) An offense under this section is a Class A misdemeanor.

Acts 1999, 76th Leg., ch. 388, Sec. 1, eff. Sept. 1, 1999.