The Notice of Alleged Violation (NOAV) in Texas Towing Regulation
Introduction
In the realm of Texas towing regulatory compliance, a key enforcement tool utilized by the Texas Department of Licensing and Regulation (TDLR) is the Notice of Alleged Violation (NOAV). This article explores the process behind NOAVs, including complaint intake and evaluation, investigation, NOAV drafting, and responding to NOAVs, as outlined in TDLR’s Complaint Resolution Procedures Manual (CRP Manual).
Complaint Intake
TDLR’s CRP Manual outlines the standard intake procedures for all complaint cases, regardless of whether the complaint is submitted by mail, fax, email, or online. When complaints are received by an Intake Administrative Assistant, TDLR acknowledges the complaint via postcard (for mailed and faxed complaints), email (for emailed complaints), or an automatically generated response in TDLR’s online complaint system.
Complaint Evaluation
Complaints received by TDLR's enforcement division are logged into a case management system, which assigns a case number that appears on the top of NOAVs. A TDLR legal assistant reviews the complaints and gathers necessary information to decide whether to open an investigation. This review includes determining:
Whether the complainant provided sufficient information.
Whether TDLR has jurisdiction over the people and events in the complaint.
Whether the complaint sufficiently identified the respondent.
When the complaint arose.
Whether documentation is attached to the complaint.
If deficiencies are found in any of these areas, the legal assistant will follow up with the complainant to obtain more information.
Opening Investigations and the Opening Letter
Legal assistants at TDLR decide whether to open investigations after evaluating the complaint. In preparing to open an investigation, legal assistants review and enter the respondent’s:
License status.
Prior cases.
Previous disciplinary action.
Basis for the current case.
Any related files (such as other related incidents).
The legal assistant also documents and categorizes the source of the complaint (e.g., consumer, departmental complaint, criminal history evaluation). The Director of Enforcement assigns cases to investigators, aiming to evenly distribute cases among them. If multiple cases involve the same respondent, TDLR policy is to assign all cases to the same investigator.
TDLR must issue an opening letter to the respondent in each case opened for investigation. Opening letters are mailed to the respondent if they are a licensee and are also sent to the complainant. If the respondent is not a licensee, TDLR will not send a copy of the opening letter to the alleged violator; it is only sent to the complainant.
No Investigation and Closing Letters
If the legal assistant or TDLR intake determines that no investigation should be opened, a closing letter is issued. Closing letters are sent in situations such as:
The complaint lacks sufficient information.
The complaint contains allegations which are inappropriate or without merit.
TDLR lacks jurisdiction.
The complaint was not timely filed.
When TDLR issues a closing letter, it is mailed on the same day the case is closed. In such cases, no NOAV will be issued because the case is closed.
Writing the NOAV: Articulating Allegations
If the investigation report demonstrates evidence of a violation, TDLR will issue a Notice of Alleged Violation (NOAV). The prosecutor is responsible for pursuing disciplinary action by issuing the NOAV. This document outlines the violation details, including the nature of the infraction, the specific rule or statute violated, and the supporting evidence. The TDLR prosecutor decides which allegations to prosecute, the wording of the allegations, and the administrative penalties and sanctions to be applied.
Legal Framework: Penalties and Sanctions
A key aspect of an NOAV is the imposition of administrative penalties and sanctions. Administrative penalties are monetary fines assessed against a respondent, while administrative sanctions involve actions against the licensee’s license, such as suspension, revocation, or probated suspension or revocation. Penalties and sanctions are determined based on the severity of the violation, adhering to the Vehicle Towing Penalties Matrix. This legal grounding underscores the seriousness of the allegations.
Entry of Default Orders and Failure to Respond
If the NOAV is not answered and a hearing is not requested, TDLR can request the entry of a default order. Default orders may be entered against a respondent who, after receiving an NOAV, neither accepts the department’s determination of the alleged violations nor makes a written request for a hearing. Every NOAV issued by TDLR must contain the “default notice” language approved by TDLR’s executive director.
Once 20 days have passed, the prosecutor’s legal assistant will draft and mail a notice of default letter (the “Default Notice”), which includes a date on which the default will be considered. The consideration date is two calendar weeks from the date the Default Notice is sent. While the case may still be settled and a hearing may still be set before the entry of a Final Default Order, cases at this stage are in serious jeopardy.
Contested NOAVs and the State Office of Administrative Hearings
In cases where the NOAV is contested and a hearing is requested by the respondent, a hearing before an administrative law judge (ALJ) at the State Office of Administrative Hearings (SOAH) will be set. These hearings are scheduled through a Request to Docket, with dates set by the legal assistant at TDLR in coordination with the prosecutor and investigator. There is no requirement for TDLR to coordinate with the respondent when setting these dates.
Once SOAH sets the trial date, TDLR will prepare a Notice of Administrative Hearing (NOH). The NOH contains the date, time, and location of the hearing, the alleged violations on which the proceeding is based, and the relief requested by TDLR (such as administrative penalties or sanctions). Like the NOAV, the NOH must also contain default warning language, stating a default order will be entered if the respondent fails to appear.
At the SOAH hearing, both TDLR prosecutors and the licensee present their cases. The ALJ receives and reviews evidence, such as documents and witness testimony, from each side. The ALJ also hears arguments from the prosecutor and the licensee or the licensee’s attorney. Following the hearing, the ALJ issues a ruling called a Proposal for Decision (PFD). This ruling is called a “proposal” because it is subject to review, modification, and approval by the Texas Commission of Licensing and Regulation (the Commission) at a subsequent formal hearing.
Action by the Commission: Decisions and Enforcement
Following the hearing at SOAH, the case will be set for a hearing before the Commission. When the Commission reviews the PFD, it can take action by either accepting the PFD as written or making modifications to the decision regarding conclusions of law, penalties, and sanctions. TDLR is responsible for enforcing any imposed sanctions, but the collection of unpaid administrative penalties (fines) is typically referred to the Texas Attorney General’s office.
Conclusion
Understanding the NOAV process and being familiar with the TDLR Complaint Resolution Procedures Manual are essential for Texas towing companies and vehicle storage facilities. As a licensee, you must not only know the laws and regulations governing your conduct, but you must also be prepared to defend your actions if an NOAV is issued.
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