Section 224.52 - Cease and Desist Order; Delegation of Authority(a) When a person is alleged to be violating a provision of Occupations Code, Chapter 2301, or a board rule or order, the department may enter an interlocutory order requiring the person to cease and desist from the violation under the following procedures. (1) In accordance with Occupations Code, §2301.154(c) and Transportation Code, § 1003.005(b), the department's Enforcement Division director is delegated the authority to issue an interlocutory cease-and-desist order under the procedures established in this subsection.(2) A person requesting an interlocutory cease-and-desist order must present a petition or complaint, verified by affidavit, containing a plain statement of the grounds for seeking the cease-and-desist order to the department's Enforcement Division director in accordance with the procedures set forth in §224.84 of this section (regarding Filing and Service of a Protest, Complaint, or Other Document). The department shall not issue an interlocutory cease-and-desist order without a verified petition or complaint that meets the requirements of this subsection.(3) At least three days prior to entering an interlocutory order requiring a person to cease and desist, the department must send a letter notifying the person of the allegations against them to all current addresses for the person in the department's records by both electronic service and certified mail, return receipt requested.(4) The notice letter must include a statement of the alleged conduct that forms the basis for the interlocutory cease-and-desist order and must provide the person the opportunity to show cause in writing within three days why the department should not issue a cease-and-desist order.(5) In considering whether to issue an interlocutory cease-and-desist order, the department must determine if the conditions set forth in Occupations Code, § 2301.802(b) are present and consider the person's written response, if any, to the letter notifying the person of the alleged violations. The department shall email a copy of the department's decision to the person in addition to sending a copy by certified mail, return receipt requested.(6) Each interlocutory cease-and-desist order must include: (A) the date and hour of issuance;(B) a statement of which of the conditions in Occupations Code, § 2301.802(b) the department determined were present to necessitate the cease-and-desist order;(C) a notice of hearing at SOAH to determine the validity of the order;(D) the reasons for its issuance; and(E) a description in reasonable detail of the act or acts to be restrained.(7) If the ALJ determines after a hearing that the cease-and-desist order should remain in place during the pendency of the contested case, the ALJ shall issue an interlocutory cease-and-desist order.(8) An interlocutory cease-and-desist order remains in effect until vacated or incorporated in a final order.(9) A party may immediately appeal an interlocutory cease-and-desist order issued by an ALJ to the board under §224.192 of this title (relating to Appeal of an Interlocutory Order) while the contested case is at SOAH.(b) The department may issue a final cease-and-desist order if a person who is not licensed under Occupations Code, Chapter 2302 is found, after notice and opportunity for a hearing, to have violated that chapter or a rule or order adopted under that chapter. The department may also issue a final cease-and-desist order under Occupations Code, Chapter 2301 to a person found, after notice and opportunity for a hearing, to have violated that chapter, a board rule, or an order. (1) If the department decides to seek a cease-and-desist order under subsection (b) of this section, the department will send a letter notifying the person of the allegations against them to all current addresses for the person in the department's records by both electronic service and certified mail, return receipt requested. The notice letter will contain:(A) a summary of the factual allegations;(B) a description of the statutory provision, rule or order the person is alleged to have violated;(C) a description in reasonable detail of the act or acts to be restrained by the cease-and-desist order;(D) a statement regarding the person's right to request a hearing;(E) the procedure to request a hearing, including the deadline for filing; and(F) notice to the person that the department will issue a cease-and-desist order that will become final on the date specified if the person fails to timely request a hearing.(2) A person to whom a cease-and-desist notice letter under subsection (b) is sent may file a written request for a hearing before a SOAH ALJ. The person must submit, in writing, a request for a hearing under this section to the department's contact listed in the notice letter provided under subsection (b)(1) of this section. The department must receive the request for a hearing within 26 days of the date the notice letter is mailed.(3) If the person does not make a timely written request for a hearing within 26 days of the date the cease-and-desist letter is mailed, the allegations are deemed admitted on the 27th day and a final cease-and-desist order including sanctions may be issued by the final order authority.(c) Once jurisdiction for the conduct of a contested case hearing transfers to SOAH, an ALJ may act on a party's motion regarding an existing cease-and-desist order issued by the department or consider a new motion for a cease-and-desist order by a party.43 Tex. Admin. Code § 224.52
Adopted by Texas Register, Volume 49, Number 17, April 26, 2024, TexReg 2780, eff. 6/1/2024