Complaint Investigation and Resolution
When the Enforcement Division receives a complaint from a consumer or other member of the public, the complaint is assigned to the intake section for review. An intake legal assistant performs research and analysis to determine (1) if TDLR has legal jurisdiction, and (2) whether there is reason to believe a violation may have occurred. In the course of this review, intake may request additional information from the person who filed the complaint (complainant.).
If the information you provide in your complaint does not contain enough information for TDLR to determine that a violation may have occurred, TDLR will first seek additional information from you (if you did not file anonymously). If TDLR does not receive enough information following that request, your complaint may not be opened for investigation.
If intake determines that the matter is within TDLR's jurisdiction and that a violation may have occurred, a case is opened for investigation. An opening letter is issued to the complainant, informing him that an investigation has been initiated. An opening letter is also sent to the person against whom the complaint was filed, known as the "respondent," if he is licensed by the agency. For certain types of complaints, opening letters are not issued because of the type of investigation to be conducted. The case is given a complaint number for identification purposes and is assigned to an investigator for further action.
As a standard practice, the investigator will interview the complainant, the respondent, and any pertinent witnesses, by telephone or in person. The investigator will also gather copies of any documents relevant to the case. If necessary, the investigator may conduct an on-site investigation of the respondent's place of business or the location where the alleged violation occurred. After the investigation is complete, the investigator submits a detailed report of the facts to a prosecuting attorney. The attorney then proceeds as described below to determine the appropriate resolution of the case.
The intake and investigation procedures described above are the standard procedures that are applied to complaints from consumers and the public, i.e. any person from outside the agency. The Enforcement Division also receives a large volume of complaints from TDLR staff, known as "Department complaints." Some Department complaints are processed according to the standard procedures described above. However, for some categories of Department complaints specialized and abbreviated procedures have been created. These specialized procedures vary from one statute to another, but generally they are designed to eliminate unnecessary steps and bring the complaint to resolution more quickly.
One example is our specialized procedure for processing Cosmetology cases arising from TDLR inspections of salons. Inspections are conducted by employees of the Field Operations Division. If an inspection reveals evidence of violations that rise to a certain level of seriousness, the Field Operations Division will refer the matter to the Enforcement Division as a complaint. When Enforcement receives this complaint, we do not assign an Enforcement investigator to the case. Instead, we assign the case directly to a prosecutor who will proceed with appropriate steps to resolve the case. There is no need for an Enforcement investigator to be involved with these cases because the violations are proven through the observations of the Field Operations inspector. In other words, the inspector is the witness to the violations found during the inspection, so he is in the best position to create a report of his findings. If the prosecutor needs more information after reviewing the inspector's report, she will seek that information directly from the inspector.
In all cases, the prosecutor decides how the case will be resolved. If the prosecutor determines that formal enforcement action is not warranted, due to insufficient evidence or other reasons, she will close the case informally by issuing a closing letter. She may also issue a warning letter to the respondent, recommending that he come into compliance with the applicable law.
To proceed with formal enforcement action, the prosecutor issues a Notice of Alleged Violation (NOAV) seeking administrative penalties and possible sanctions against the respondent's license. An administrative penalty is a monetary fine paid by the respondent to the State of Texas. A sanction is an action upon the respondent's license, and may include suspension of the license, probation, a written reprimand, or outright revocation of the license. Administrative penalties and sanctions applicable to specific violations within each TDLR program are reflected in the TDLR Enforcement Plan which may be found on the Department's website.
Factors considered by the prosecutor in determining the amount of penalty or level of sanction include:
(1) The severity or seriousness of the violation.
(2) Whether the violation was willful or intentional.
(3) Whether the respondent acted in good faith to avoid or mitigate the violation or to correct the violation after it became apparent.
(4) Whether the respondent has engaged in similar violations in the past.
(5) The level of penalty or sanction necessary to deter future violations, both by the respondent and by the industry as a whole.
(6) Any other matter that justice may require.
When an NOAV is sent, it may contain a settlement offer. If an agreement is reached, an Agreed Order is issued by the Executive Director of TDLR. The Agreed Order will typically require the respondent to do certain things, such as paying an administrative penalty to the agency, paying restitution or making repairs for the consumer, completing additional education, or providing required documentation to the agency. The respondent's efforts to comply with the terms of an Agreed Order are monitored by employees of the Enforcement Division until the requirements of the order are completed.
If a settlement is not reached and the respondent does not make a timely request for a hearing after receiving the NOAV, a Default Order granting penalties or sanctions may be entered against the respondent without first conducting a hearing. Default Orders are issued by the Executive Director of TDLR.
If the respondent requests a hearing in writing within 20 days after receiving the NOAV, the hearing is scheduled before the State Office of Administrative Hearings (SOAH). Parties are advised of the hearing date and time. The case is heard by a SOAH administrative law judge, who submits a Proposal for Decision (PFD) to all parties. The PFD contains the judge's proposed findings of fact and conclusions of law, and a recommended outcome for the case. The PFD is not a final decision in the case. The final decision is made by the Commission of Licensing and Regulation after consideration of the PFD. See below.
All parties are notified of the date of the Commission meeting, at which time the Commission will consider adopting the decision recommended by the SOAH judge in the PFD. At the Commission meeting, the respondent and the Department's attorney are given an opportunity to make arguments to the Commission regarding the PFD. After the Commission makes a final decision in the case, a Final Order is issued to the parties.
If the respondent believes that either an Order of the Executive Director or Order of the Commission has error(s), the respondent may file a Motion for Rehearing pursuant to Section 2001.144, Texas Government Code no later than the 25th day after the Order is signed. A Motion for Rehearing is a prerequisite to any further appeals of the Order.
The respondent or any party may wish to view the TDLR video produced to explain the process at https://www.youtube.com/watch?v=SVnMJGK724U. Additionally it is recommended that respondent or his attorney review Sections 2001.144-178, Texas Government Code which sets forth in more detail the requirements for filing a Motion for Rehearing.
The Motion for Rehearing must specifically identify the error or errors that are in the Order. If the respondent does timely file a Motion for Rehearing, the Commission may grant, deny or take no action on the Motion. If no action is taken within 55 days after the Order is signed, the Motion is denied automatically.
If a Motion for Rehearing is denied, the respondent has 30 days following the denial to file a request for judicial review (appeal) in Travis County District Court. If a request for judicial review is filed, the agency is represented in District Court by an attorney from the office of the Texas Attorney General.