text:
1. Why Did Policy Analysis Become so Essential?
In modern times, drafting Public Policy is no longer what it used to be. In less than half a century the world has changed dramatically: (i) Technologies have spread pervasively in every niche and crevice of our lives; (ii) national borders have blurred under globalization; (iii) societies have become more complex. These three factors combined in a powerful cocktail, collapsed the traditional, ideology-driven, art of policymaking. Devising a legislative reform is no more a matter of left and right, of clear cut responses. Societies leaped forward, in the turn of few decades, from a mostly polarized spectrum, based on the dichotomy workers-industrials, to a rainbow of professions, specializations and life-styles. Consequently, public policies, nowadays, need to serve variegated societies. Moreover, the slightest dissonance can trigger far-reaching consequences. People and companies can easily move from one country to another, relocating in the regulatory environment that best suits their interests. At the same time, the conspicuous degree of digitalization brings on the table an enormous, gigantic, ridiculously massive amount of data. Statistics are impressive. In 2013, a study commissioned by IBM, pointed out that 90% of all of the world’s data were generated in the last two years. Such availability spurs the competition among policy makers. Different national administrations compete to entice business and people to move within their borders and to keep the ones already in from fleeting. Policies better planned, are more likely to attain their intended objectives and therefore, they attract more users within their regulatory environment.
In few words, policy analysis aims at the optimization of resources to achieve certain objectives, via regulation. The more technologies advance, the easier it gets to retrieve data, to cross borders and the more societies sophisticate. All these factors boost the fight for having in place the most efficient rules. These are the reasons why “Better Regulation” is one of the hot cries of the last decade.
To contextualize the Italian position in terms of policy analysis we should start from Europe. So first, given the contingent historical moment, we would like to acknowledge that Europe spearheaded the modernization of the Italian public administration, raising awareness on the need to establish procedures and strategies to achieve what frequently goes by the label of “Better Regulation”. Under such label we refer to the whole life-cycle of a piece of legislation, spawning from preparation, analysis and consultations to its approvals and enforcement, arriving up to monitoring its effectiveness and, eventually, to its amendment. Fifteen years ago, in 2001, the “Mandelkern Report”, advocated the implementation of a coherent strategy within the regulatory environment of the Member States, proposing, before the adoption of a new legislation, the execution of impact assessments, consultations among stakeholders, simplification of procedures and the set up of an institutional body specialized thereof. In 2002, the European Commission issued a Communication, which introduced some standards for Regulatory Impact Analysis (RIA) and consultations. In 2003, it followed an Inter-Institutional Agreement on better law-making, setting a cooperation agenda for the EU Commission, the Parliament and the Council of Ministers, which culminated in 2006 with the establishment of a Commissions’ Impact Assessment Board. The Board centralizes the quality control over the European regulation, further providing important support for the development on new proposals. Finally, in 2015 a cornerstone text was issued, containing the EU Guidelines on Better Regulation setting the framework for any future regulatory initiative of the European Union.
In Italy, it is difficult to trace back to a precise point in time the awakening towards the need for Better Regulation. Ruling governments ever since ventilated in their election campaigns the bureaucratic vexation of people, stemming from tangled up regulations. The same critic is still in the air today. Our political history though, from one side favored a bubblesome mitosis of regulations, exacerbating the process; on the other, it hindered the reform of the process, compromising its solution. The weakness of the majority characterizing the ruling coalition forced the legislative process through troubled compromises. Even if started under meritorious auspices of coherence and rigor, legislations in Italy too often ended centrifuged through hasty drafting procedures, being victim of blunders and subsequent surgeries in emergency status. Such peculiarity of the Italian politics, which, notwithstanding the electoral reforms is not luckily to relinquish the country, reinforces the need for structured rules and procedures towards better regulations.
Formally, however, the Regulatory Impact Analysis (RIA) timidly peeped out on the Italian legislation, for the first time in 1999 (“Legge Sulla Semplificazione”, n. 50/1999). By 2003, it was extended to regulatory authorities, under OECD recommendation. However, the turning point arrived on the 28th November 2005, with the enactment of the Law n. 246. With the expressed purpose of achieving the purported simplification, such Law empowered the government to define “the general criteria of the RIA procedures, including the phase of consultations” (art. 14, par. V). Three years later, the government finally made use of the attributed power and, with a decree of its president, ruled out the blueprint for Policy Analysis in Italy (DPCM n. 170/2008).
Following the European example, the Decree n. 170 decentralized to each ministry the preparatory work for the proposal of regulatory reforms. By so doing, it is possible to profit of the concrete expertise of each administration over the subjects under its own sphere of competence.
The procedure of analysis is compulsory for each initiative of the government (art. 2), provided few exceptions. Among those, stands out a puzzling one for Constitutional reforms (art. 8). There exists also a case by case exemption to be granted by an oversight body, identified in the Department for Juridical and Legislative Affairs (DAGL) of the “Presidenza del Consiglio”. The norm accordingly created, within such Department, an “Office for the Analysis and Evaluation of Regulatory Impact”, delegating to that body all the duties related to RIA and Monitoring and Evaluation activities (M&E).
The most relevant disposition of the Decree is probably art. 4, which attempts to lay down a structure for the RIA, setting out specific criteria and providing a model sample at annex A. The norm explicitly requires the continuous adjournment for the model, at least every three years. At the time of writing, eight years have passed but the model has remained unchanged. Accordingly, the preparatory analysis of a public policy in Italy encompasses the following sections: 1. Objectives and context; 2. Consultations; 3. Evaluation of the “option-zero” or no-intervention; 4. Alternative solutions, ordered for invasiveness; 5. Justification of the proposed solution; 6. Consequences on the market and competitiveness; 7. Enforcement and monitoring. There is no mention to quantitative and measurable analysis.
According to well-accepted practices, the preparatory phase has to contemplate consultations with the stakeholders, in conformity to the principles of transparency and proportionality (art. 5). The RIA culminates then in a Report which, the proposing administration submits to the DAGL for approval. The DAGL can ask for clarifications or addenda. Without such approval, the reform cannot be registered on the parliamentary agenda for discussion (art. 7). The report essentially has to follow the sections mentioned for the RIA and explained at annex A (art. 6, par. III).
In a nutshell, these are the norms addressing directly policy analysis in Italy. However, it is sufficient to navigate through the websites of the administrations to notice that the Decree 170 only represents one tip of one iceberg, whereas the cap of policy analysis is far more complex than that. There are in fact three other verification procedures, other than the RIA, closely intertwined with it, at times overlapping. The first and most coherent one is the mentioned M&E (or VIR in Italian), which takes place after the reform is running for a minimum of time. This is the natural development of the RIA, since it verifies the accuracy of its RIA’s forecasts, starting from the indicators and comments thereby outlined.
The M&E procedure is detailed in the Presidency Decree n. 212, promulgated on the 19th of November 2009. The norm, in general, requires a biannual analysis after the implementation of the reform. It is the same administration that carried out the RIA to be responsible for its verification through M&E activities. In parallel, the administration has to obtain the approval of the DAGL on its M&E analysis (art. 2), however there is not mention of a control mechanism. The law is indeed silent on the consequences of a missed analysis by the competent administration. The M&E analysis complement the original RIA also in its structure, as it follows by its main sections: a) Degree of target achievement; b) Cost analysis; c) Effects analysis; d) Degree of compliance; e) Criticalities; f) final remarks with suggestion of necessary adjustments. The scheme also features spurious categories, which would have better fit as subsections of one of the macro areas already quoted, e.g. “effects on the simplification” or “incidence on the concurrence of the market”, and others not appropriate for a supposedly technical analysis, such as “coherence with the government program” (art. 3).
Separate from the RIA and the M&E analysis, the third control brought about in the Italian crusade for Better Regulation goes by the acronym of ATN, which approximately translates as Technical-Normative Analysis. The inception of this other tool does not find a direct recognition in a law of the parliament. It rather represents an additional check the government has levied on its rule-making process. In particular, the test is required by a “Directive” of the “Presidenza del Consiglio”, dated 10 October 2008. This further test is prompt to verify the incidence of the proposed regulation on the existing body of laws, with special regard to its conformity to Constitutional and European norms, as well as relevant jurisprudence (art. 2). The directive expressly enucleates the purpose of the ATN as to ensure the strict necessity of regulatory reforms (art. 3, let. a); oversee and stimulate the recourse to simplification tools (let. e); analyze the impact of the regulation on the market concurrence levels, on the freedoms of the regulated subjects and on liberalization processes (let. l). On these topics, the scope of the ATN test clearly converges with the RIA. Indeed, as a matter of principle, there is no reason for the establishment and codification of a separate tool of analysis only pertaining the legislative impact of a new reform. The administration could and should consistently integrate the ATN as a subtest within the RIA. As a proof, the incipit of the RIA already demands an evaluation of the normative context in which the new regulation is going to graft. This is frequently the most extensive and detailed part, as the producing administration stresses the descriptive introduction. The partition unfortunately ends up creating considerable noise around the same reform, which now is accompanied to parliamentary discussion by two separate analysis, decisively overlapping on many points, but responding to slightly different set of criteria.
Our picture, however, is not yet exhaustive, as there is another evaluation required to all governmental administrations trespassing the scope of the previous tests. This is the MOA or “Measurement of Administrative Burdens”. What is the concrete difference of such procedure from the measurements required by the RIA and the M&E, is difficult to say. In practical terms, public administrations themselves acknowledge that the activity underlying this analysis concretely interconnects with the two abovementioned. I have almost no doubt that, once the diligent administration has calculated its costs, it uses the same figures to fulfill all its reporting requirements. However, these activities find their discipline in different pieces of legislation, which, through different verbal formulas, provide different guidelines.
More in detail, the MOA was introduced by the “Statuto delle Imprese” (“Statutes for Enterprises”), Law n. 180 of 2011. This procedure is two-pronged. One consists in attaching a list of all the information burdens, monetized in their respective costs, introduced and repealed by a new secondary act of an administration. Secondary acts, in general do not undergo the RIA. However, the same list, has to accompany now legislative proposals. Accordingly, the Statute introduced the MOA list a section of the RIA, modifying Law 246 of 2005 (cfr. art. 14, par. 5-bis). The statute further requires the proposing administration to annex the same list to any regulatory initiative addressed to the general public (art. 7). A problem here could arise with regard to the concrete methods used from time to time, by the administration in order to measure the relevant burdens. The government elaborated specific guidelines on how to produce and present the MOA lists (DPCM n. 252, 14 November 2012) and later specified how to calculate each burden (DPCM, 25 January 2013). These norms do not account for the general preference laid out for the RIA, in favor of the EU Standard Cost Model (the DPCM 170/2008, Annex A). The degree to which these different norms and standards conflict with each other is beyond the purpose of the present work, which however cannot but judge the legislative technique adopted with some disapproval. In practice, we are not aware of cases, where costs were accounted for in different ways, in different regulations, but we fear this is rather the consequence of an entrenched tendency to avoid quantitative analysis by the Italian administrations, rather than a virtue of the legislation.
The second activity of analysis demanded by the MOA to each administration consists in drafting an annual balance of all the burdens on citizens and business deriving from the regulations that pertain to its office (art. 8, sec. II). This clearly overlaps with the M&E activities reinforcing my perplexities for the confusion on quantification methods.
If the situation is not pristine as a matter of substantive rules, it becomes worse once we take into account the subjective side of Policy Analysis in Italy. The cry for Better Regulation spilled into frantic appointments of key analytic functions to a constellation of offices, services and departments, which cannot but struggle to coordinate.
We have mentioned the DAGL, the department elected as the central player for RIA and E&M analysis by Law 246/2005. The DAGL surely is the closest thing we have to the classic oversight body, as known in other countries. However, the shortcomings of the system did not take long to materialize. Policy Analysis requires complex judgements, or at least it should, equally drawing from the knowledge of Law, Economics and Political Science. It requires some statistical lingo, some familiarity with cost benefit analysis, some data and figures analysis. However, the Department for Juridical Affairs and Legislation was (and is) populated mostly by legal experts, who lacked the technical expertise to tackle an effective policy forecast, with all its implications. In order to cope with such impairment, the help of the Department for the Coordination and the Economic Planning (CIPE) was put at the DAGL disposal. Specifically, another Decree of the “Presidenza del Consiglio” instituted, within the CIPE, the “Nucleus for Verification and Evaluation of Public Investments”, at whose interior we find the “Group for the Regulatory Impact Analysis” (DPCM, 15 July 2009). The mentioned Decree bestowed this body with the task of succoring the DAGL on the most technical aspects of the analysis, in particular dialoguing with single administrations to explain the procedural flaws committed.
Needless to say, a more accurate and orderly reform would have better instituted a special single body entrusted with policy analysis operations. Such organic perspective would consent a rigorous selection of the professional profiles best suited for policy analysis, with greater savings in coordination and requalification costs. In any case, the dicephalus nature of the oversight body partly remitted to the competent office of the DAGL, partly to the competent team of the CIPE, is not the worst problem of the system. These two bodies at least found some synergy. Unfortunately, this is not the case for many other public units also implicated in the system of policy analysis.
To start, we notice a structural incoherence in the division of ministries, from which stems the juxtapositions of many different offices, with identical roles. In Italy exists a Ministry devoted to “Constitutional Reforms and Parliamentary Relations” and another to “Simplification and Public Administration”. The descriptive meaning of these titles, does not collide, however in practice the ministries do. The Ministry for Constitutional Reforms, in fact, does not limit its operation to Constitutional Reforms, but rather coordinates the whole array of institutional reforms contained in the program of the government. Respectively, the Ministry for Simplification cannot but achieve its purpose by reforming the administration. As a result, many offices within the respective bodies deal with the same policy analysis..
First, there is the “Unità per la Semplificazione e la Qualità della Regolazione”( hereinafter referred to as “Unit”). Such unit was established and regulated also by secondary legislation (DPCM, 12 June 2013). It gravitates within the “Presidenza del Consiglio”. It directly refers to the Ministry for the Simplification and Public Administration. The Unit was devised as the operational arm of a special Committee, created in 2006 and composed by different ministers. The Committee serves the purpose of steering and coordinating the government action towards simplification and better regulation, presenting an annual relation to the Parliament, on past activities and future strategy (Law n. 80, 9 March 2006). The Unit heavily partakes with Better Regulation activities: it curates the annual plan of action for better regulation, ordering the intended legal reforms; it promotes the coherence and simplification of the existing regulation; it promotes the digitalization of the public administration; it coordinates the process of better regulation by monitoring and taking active part in the initiatives singularly started by each administration; it even holds consultations with stakeholders and receives their proposals and comments (DPCM, 12 June 2013). Hopefully, behind the walls of the PA, this Unit works in close connection with the DAGL and the other bodies. In any case, the attribution of the respective powers is scattered in heterogeneous sources, against the preached values of regulatory quality.
Always within the Ministry for Simplification and PA, nested in the Department of the Public Function, we find the Office for Simplification and Removal of Bureaucratic Burdens. As ruled in the ministerial Decree of 17 November 2015, such office has the task of “promoting and coordinating the policies of normative and administrative simplification, in order to achieve better quality of regulation, cut the administrative costs of compliance for the users, increase the competitiveness and the rule of law for citizens and enterprises”. Again, “the office promotes legislative and administrative reforms coherent with the national strategy of digitalization [..]; curates the drafting of a balance sheet for administrative burdens; monitors the effects of the simplification actions; promotes consultation of the stakeholders”. The pleonasm is evident.
The “Cosmo” does not end here. We find another abundant office, whose task seems precisely overlapping with the policy analysis functions delegated to the DAGL, the CIPE and the Unit. This is the SNSRE or the “Office for Normative Support, Studies and External Relations”. This body is embedded within the Department for Institutional Reforms whose mission, to start with, is considerably rooted into policy analysis. The Department supports the President for the coordination, direction and promotion of new initiatives, also of regulatory nature (art. 23, DPCM 1 October 2012). This department, differently from the Unit, appears under the Ministry for Reforms. Within the department, the Decree of the Minister for Reforms and Parliamentary Relations, dated 21 September 2015, established the SNSRE with the task of carrying out “the activities of study, analysis, elaboration of normative proposals” (art. 5). A limitation restricts the scope of the policy analysis of the SNSRE to Institutional Reforms. However, on those, there subsists a clear duplication. To put the cherry on the cake, within the Ministry for Reforms, there is also the “Office for the Legislation Program” with additional powers of monitoring, collecting statistics and proposing legal reforms.
This confused constellation reflects only the organization of the government. The legislative body also contains other offices, whose main function is to ensure Better Regulation. In particular, the powers of policy analysis are extremely dispersed within the Senate, which disposes of a multitude of interesting “services”. First, we count the “Service for the Quality of Normative Documents”, which splits into the “Office for administrative feasibility and RIA of pending drafts of legislation”, the “Observatory on the Enforcement of Legislation” and the “Office for the review of Legislative Documents”. The boundary between the activities of each office is fairly blurred. The first, most interestingly, is deputed to report on the feasibility and the regulatory impact of any legislative proposal. According to the norm, it is not bound to take into account the work previously done by the myriad of others. In practice it does, hopefully, but there are no clear rules as to how incisive the counterchecks can be and to what extent they might oppose the opinion of conformity released by the DAGL. Furthermore, the norm demands to this Office to “elaborate criteria, parameters and methods” for policy analysis, which are presented “for political approval”. The procedure and effects of such approval are unknown. For what about the second Office, the observatory, it “curates the census and the technical analysis of the existing legislation” and “carries out studies and research on the legislative production as a whole, as well as on the enforcement of specific legislations and their effects”. The third office is in charge for the “collection of the existing legislation on techniques for better legal drafting and it ensures their application”.
Moreover, there are other 11 offices at the senate, heading to the “Service of Studies” and the Service for the Budget, all involved into policy research, analysis and evaluation.
In order to render visually how complex is the structure just described we tried to scheme it into Venn Diagrams, where the different test are indicated by a number and the different administrations by a letter. The Legend explicating each acronym in Italian follows. It includes the relevant pieces of legislation taken into account. The scheme, for practical reasons, excludes the offices of the Senate previously described.
Policy Analysis is a serious activity. It deserves careful planning, however the enthusiasm with which it was implanted in Italy most certainly overshot. The messy proliferation of plethoric ministries, departments, offices, units, nucleuses and groups, all tackling an aspect of policy analysis creates a riffraff of duties and discording voices, which cannot but prejudice the quality of the function.
We recognize it would be contradictory to pretend a perfect legislation for the establishment of the policy analysis system. Such perfect legislation, as a matter of fact and logic, would undermine the need for a policy analysis system in the first place. Nonetheless, if the system is wisely devised, again according to logic it should lead to its own regeneration in the shortest time. If this is not the case, like in Italy, that alone constitutes a reasonable red flag indicating the system was not well-devised.
Times are ripen for a thorough and consistent revision of the actual system. Two are the leading factors. First, last year, with the publication of the Law for the Reorganization of the Public Administration the parliament bestowed upon the actual government the power to restructure the Italian system for Policy Analysis. In particular, the Parliament consented the Government to modify the organization of the “Presidenza del Consiglio”, as well as of the ministries and independent authorities, with regard to the “empowerment of the mechanism and tools for the monitoring and evaluation of the public activity”.
Such major change, tackling both the sides of the mess, could trigger a better coordination between the policy analyses of the government and the Senate. Ideally speaking, the reform should sharpen the powers of the Government. Policymaking is undoubtedly an activity pertaining to the executive power, it is of vital importance therefore to aggregate one single Department solely deputed to policy analysis. This department shall aggregate the scattered offices currently sharing general powers of analysis and distributed in different ministries. It is of great importance that such Department gathers legal experts, economists and administrative experts. These cumulatively have the language to communicate with the different administrations on a case by case approach, in order to cover all the necessities of Policy Analysis. This body also should concentrate the competence for conducing general researches, with the help of relevant administrations, for reform proposals, so as to maximize the knowledge acquired by conducing regular policy analysis. Such centralized and specialized solution would make sure the government keeps up with new studies and techniques advancing in other countries or in the academia. Coherently, the Policy Analysis should be streamlined, conducing the current MOA and the ATN within the scope of the RIA and the E&M analysis. On the other hand, the Senate, in coherence with its role of a democratic guarantee should limit its activities to fact checking, cutting loose the current aspiration as a policy maker. The role of the Senate should coherently be foremost at the service of the not governing parties, which need to enjoy of the same technical support available to the government in order to challenge the results of a policy analysis advanced by the government. To achieve such objective, however, the Senate should remain neutral offering only a technical service, upon request of the minorities. Moreover, in line with this activity of fact checker, the Senate and not a Government body, as it is the current case for the DAGL, shall express his opinion on the regularity, comprehensiveness, accuracy and reliability of the policy analysis laid down by the Government together with a proposed draft of reform.
Briefly, to conclude, a centralized perspective makes it easier to model an efficient dichotomy between the government and the parliament. It suits Montesquieu’s system of balances and counterbalances better , reflecting the division of powers among our institutions. Nonetheless, the paradox is bogging us down. If the system of policy evaluation is flawed, how will the administration arrive to understand the urge to replace its policy evaluation system? We are confident that the upcoming reforms will turn the Italian system of policy analysis under the spotlight. Then, the necessity for a thorough revision cannot but emerge limpidly. In the waiting, stay tuned with our review, were we are going to offer more ideas on how to reform the system, after a comparative assessment of other administrative models for policy analysis, like the American, the British and the German one.
 For a general overview of Policy Analysis see Fischer, Miller, Sidney, Handbook of Public Policy Analysis, (eds) (2007); Goodin, Moran, Rein, The Oxford Handbook of Public Policy, Oxford University Press (2008); La Spina, Espa Analisi E Valutazione Delle Politiche Pubbliche, Bologna, il Mulino (2011).
 Law 246, art. 14, par. V, requested an intervention within 180 days, but quis custodet ipsos custodes?
 Dipartimento per gli Affari Giuridici e Legislative.
 Ufficio per L’Analisi e Verifica dell’Impatto della Regolamentazione.
 This is known in Italy as VIR or ”Verifica dell’Impatto della Regolamentazione”.
 In Italian “Misurazione Oneri Amministrativi”.
 Most importantly, the MOA requirements have been extended to Independent Public Authorities as well as public local entities. It is consequently established a special committee for the coordination within these subjects. Cfr. Art. 6, Legal Decree n. 70, 13 May 2011, converted into Law n. 106, on the 12th July 2011.
 For which see M. BENEDETTI, Il controllo sull’analisi di impatto della regolazione: l’esperienza degli oversight bodies, in Rivista trimestrale di diritto pubblico, 2012, 4: 1057-1105.
 Dipartimento per il Coordinamento e la Programmazione Economica (DIPE).
 Nucleo di Verifica e Valutazione degli Investimenti Pubblici (NUVV).
 The first order norm attributing such power to the government is the Legal Decree 181/2006, converted into Law, with amendments on the 17 July 2006, n. 233, under the title “Urgent disposition on the restructuring of the powers of the “Presidenza del Consiglio” dei Ministri e dei Ministeri”.
 “Ufficio per la semplificazione e la Sburocratizzazione”. The latter word in English would amount to something like Debureaucratization. A word that, by its very nature, tells a lot about the simplification attempts of the Italian Government.
 “Ufficio per il Supporto Della Normativa, Gli Studi E Le Relazioni Esterne”.
 Not to critic the incoherence of such policy analysis function with the other function attributed to the SNSRE, which consists in entertaining relations with the Parliament, the European institutions and the Regional administrations.
 I will report them only here, not to vexate the reader. They consist of: (i) Ufficio per la documentazione degli effetti finanziari dei testi legislativi; (ii) Ufficio per la verifica della quantificazione degli oneri connessi a testi legislativi in materia di entrata; (iii) Ufficio per la verifica della quantificazione degli oneri connessi a testi legislativi in materia di spesa. These three are within the Service for the Budget. Within the Service for Studies we find one office of analysis for each of the following sectors: Economic and Finance; Labor and Health; Justice and Culture; Foreign Affairs and Defense; Federalism; Comparative Legislations and The European Center of Research and Parliamentary Documentation.
 The norm, at art. 8, par. I, let. c) achieves this result with a contort referral, asking for the enforcement of the principles at art. 11, 12 and 14 of Law n. 59/1997. This is the Law Bassanini, for the simplification of the PA, which at art. 11, par. I, let. c) states the principles reported in the text.

matches:
art. 4
art. 14
art. 14
Art. 6
art. 8
art. 11
art. 11


Petitioner Richard Dee Thomas appeals the district court's denial of his petition for a writ of habeas corpus, brought pursuant to 28 U.S.C. § 2241 and § 2254.1 Because petitioner has not shown that the issuance of an arrest warrant and a search warrant by a Utah court commissioner violated his federal constitutional rights, we affirm.
In July 1993, Utah circuit court commissioner Palacios issued an arrest warrant and a search warrant leading to petitioner's conviction for aggravated robbery. In August 1994, the Utah Supreme Court declared unconstitutional those portions of section 78-3-31 of the Utah Statutes which delegated "core judicial functions" to court commissioners, contrary to article VIII, section 8 of the Utah Constitution. See Salt Lake City v. Ohms, 881 P.2d 844, 851 (Utah 1994).
Petitioner appealed his conviction, arguing Commissioner Palacios' acts were unconstitutional. The Utah Court of Appeals rejected petitioner's argument on the grounds that Ohms ' holding was prospective only and did not apply to the issuance of a search warrant. This appeal is currently pending before the Utah Supreme Court on certiorari review. Petitioner also filed a state court application for extraordinary relief which was dismissed as premature. The Utah Supreme Court affirmed the dismissal based on the availability of an adequate remedy in petitioner's direct appeal. See Appellee's Br., Addendum E.
Petitioner brought a civil rights action against Commissioner Palacios in the federal district court, seeking damages, an injunction, and release from imprisonment. The district court dismissed the action under 28 U.S.C. § 1915(d), and we affirmed the dismissal in Thomas v. Palacios, No. 95-4094, 1995 WL 758970 (10th Cir. Dec. 26, 1995). Petitioner filed his current federal habeas petition in July 1996, alleging his conviction and sentence were unconstitutional because Commissioner Palacios lacked judicial authority to issue the arrest and search warrants. The district court denied the petition on the ground that the Ohms decision did not invalidate petitioner's conviction and sentence. This appeal followed.
We review de novo the district court's legal conclusions in dismissing a habeas petition. See Davis v. Executive Dir., Dep't of Corrections, 100 F.3d 750, 756 (10th Cir. 1996), cert. denied, 117 S. Ct. 1703 (1997). Petitioner argues the district court erred in failing to recognize that his conviction was unconstitutional because the Commissioner lacked judicial authority to issue the arrest and search warrants. Respondent argues that the dismissal may be affirmed either because petitioner failed to exhaust his state court remedies or because he failed to show the violation of a federal constitutional right.
Although it is clear that petitioner has not exhausted his claim, we choose to affirm the district court's decision on the merits. See 28 U.S.C. § 2254(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State."); Granberry v. Greer, 481 U.S. 129, 135 (1987) (holding both state and federal interests will be furthered by an affirmance on the merits, despite the lack of exhaustion, "if it is perfectly clear that the applicant does not raise even a colorable federal claim").
Petitioner's claim fails because, as we noted in Thomas v. Palacios, he has not alleged the violation of a federal constitutional right. See 1995 WL 758970 at * * 2. The federal Constitution is not violated by issuance of an arrest warrant or a search warrant by a non-judge. See Shadwick v. City of Tampa, 407 U.S. 345, 348-50 (1972) (holding Constitution does not require arrest or search warrant to be issued by judge, so long as issuing party is "neutral and detached, and ... capable of determining whether probable cause exists for the requested arrest or search"). Even if delegation of such functions contravened the Utah Constitution, therefore, it did not violate the federal Constitution, and petitioner is not entitled to relief in the form of a writ of habeas corpus.
Petitioner's outstanding motions, petitions, and emergency applications are DENIED and the judgment is AFFIRMED. The mandate shall issue forthwith.


77-2358. Public power and irrigation district funds; depositories; duty of treasurer to keep list of securities.
The treasurer or other competent officer of the district shall at all times keep and certify to the district a complete and correct list and description of the securities furnished by any depository. Section 77-2366 shall apply to deposits in capital stock financial institutions. Section 77-2365.01 shall apply to deposits in qualifying mutual financial institutions.
Source:Laws 1941, c. 160, § 2, p. 642; C.S.Supp.,1941, § 77-2538; R.S.1943, § 77-2358; Laws 1989, LB 33, § 71; Laws 1996, LB 1274, § 47; Laws 2001, LB 362, § 67.


Secretary of Health and Human Services.
Secretary of Housing and Urban Development.
Commissioner of Social Security, Social Security Administration.
Director of National Drug Control Policy.
Chairman, Board of Governors of the Federal Reserve System.
5 U.S.C. 2211(a). Aug. 14, 1964, Pub. L. 88–426, §303(a), 78 Stat. 416 .
Paragraph designation for the position added by Pub. L. 96–88 has been omitted in view of the deletion of all paragraph designations in this section by Pub. L. 96–54.
2004-Pub. L. 108–458 inserted item relating to Director of National Intelligence.
2002-Pub. L. 107–296 inserted item relating to Secretary of Homeland Security.
2000-Pub. L. 106–569 inserted item relating to Chairman, Board of Governors of the Federal Reserve System.
1998-Pub. L. 105–277 inserted item relating to Director of National Drug Control Policy.
1994-Pub. L. 103–296 inserted item relating to Commissioner of Social Security, Social Security Administration.
1988-Pub. L. 100–690, §§1003(a)(4)(A), 1009, temporarily inserted item relating to Director of National Drug Control Policy. See Effective and Termination Dates of 1988 Amendments note below.
Pub. L. 100–679 inserted item relating to Director of Office of Management and Budget.
Pub. L. 100–527 inserted item relating to Secretary of Veterans Affairs.
1986-Pub. L. 99–260 struck out item relating to Special Assistant for Agricultural Trade and Food Aid.
1985-Pub. L. 99–198 inserted item relating to Special Assistant for Agricultural Trade and Food Aid.
1983-Pub. L. 97–456, §3(d)(5), substituted "United States Trade Representative" for "Special Representative for Trade Negotiations".
1979-Pub. L. 96–88, §508(g), substituted "Health and Human Services" for "Health, Education, and Welfare" in item relating to the Secretary of Health and Human Services.
Pars. (1) to (14). Pub. L. 96–54 struck out paragraph designations for positions listed herein.
Par. (15). Pub. L. 96–88, §508(c), added par. (15) relating to Secretary of Education. See Codification note set out above.
1977-Par. (14). Pub. L. 95–91 added par. (14) relating to Secretary of Energy.
1975-Pub. L. 94–82 substituted provisions applying level I of Executive Schedule to positions for which annual rate of basic pay shall be rate determined with respect to such level under chapter 11 of title 2, as adjusted by section 5318 of this title for provisions applying such level I to positions for which annual rate of basic pay is $35,000.
Par. (13). Pub. L. 93–618 added par. (13) relating to Special Representative for Trade Negotiations.
1970-Par. (5). Pub. L. 91–375 struck out par. (5) relating to Postmaster General.
1966-Pub. L. 89–670 added par. (11) relating to Secretary of Housing and Urban Development, and par. (12) relating to Secretary of Transportation.
For Determination by President that amendment by Pub. L. 108–458 take effect on Apr. 21, 2005, see Memorandum of President of the United States, Apr. 21, 2005, 70 F.R. 23925, set out as a note under section 3001 of Title 50, War and National Defense.
Amendment by Pub. L. 108–458 effective not later than six months after Dec. 17, 2004, except as otherwise expressly provided, see section 1097(a) of Pub. L. 108–458, set out as an Effective Date of 2004 Amendment; Transition Provisions note under section 3001 of Title 50, War and National Defense.
Pub. L. 106–569, title X, §1002(b), Dec. 27, 2000, 114 Stat. 3028 , provided that: "This section [amending this section and sections 5313 and 5314 of this title] and the amendments made by this section shall take effect on the first day of the first pay period for the Chairman and Members of the Board of Governors of the Federal Reserve System beginning on or after the date of the enactment of this Act [Dec. 27, 2000]."
Amendment by Pub. L. 100–690 effective Jan. 21, 1989, and repealed on Sept. 30, 1997, see sections 1012 and 1009, respectively, of Pub. L. 100–690.
Pub. L. 100–679, §11(e), Nov. 17, 1988, 102 Stat. 4070 , provided that: "The amendments made by this section [amending sections 5312 to 5315 of this title] shall be effective on January 20, 1989."
Amendment by Pub. L. 100–527 effective Mar. 15, 1989, see section 18(a) of Pub. L. 100–527, set out as a Department of Veterans Affairs Act note under section 301 of Title 38, Veterans' Benefits.
Amendment by Pub. L. 96–88 effective May 4, 1980, with specified exceptions, see section 601 of Pub. L. 96–88, set out as an Effective Date note under section 3401 of Title 20, Education.
Pub. L. 96–54, §2(a)(25)(B), Aug. 14, 1979, 93 Stat. 382 , provided that: The amendments made by subparagraph (A) [amending sections 5312 to 5316 of this title] shall take effect January 1, 1980".
Amendment by Pub. L. 91–375 effective within 1 year after Aug. 12, 1970, on date established therefor by Board of Governors of United States Postal Service and published by it in Federal Register, see section 15(a) of Pub. L. 91–375, set out as an Effective Date note preceding section 101 of Title 39, Postal Service.
Amendment by Pub. L. 89–670 effective 90 days after Secretary of Transportation first takes office, or on any earlier date after Oct. 15, 1966, as President prescribes and publishes in Federal Register, see section 16(a), formerly §15(a), of Pub. L. 89–670.
Pub. L. 94–82, title II, §201, Aug. 9, 1975, 89 Stat. 419 , provided that: "This title [see Tables for classification] may be cited as the 'Executive Salary Cost-of-Living Adjustment Act'."
"(a) In General.-The compensation and other emoluments attached to the office of Secretary of the Interior shall be those in effect January 1, 2005, notwithstanding any increase in such compensation or emoluments after that date under any provision of law, or provision which has the force and effect of law, that is enacted or becomes effective during the period beginning at noon of January 3, 2005, and ending at noon of January 3, 2011.
"(1) Jurisdiction.-Any person aggrieved by an action of the Secretary of the Interior may bring a civil action in the United States District Court for the District of Columbia to contest the constitutionality of the appointment and continuance in office of the Secretary of the Interior on the ground that such appointment and continuance in office is in violation of article I, section 6, clause 2, of the Constitution. The United States District Court for the District of Columbia shall have exclusive jurisdiction over such a civil action, without regard to the sum or value of the matter in controversy.
"(2) Three judge panel.-Any claim challenging the constitutionality of the appointment and continuance in office of the Secretary of the Interior on the ground that such appointment and continuance in office is in violation of article I, section 6, clause 2, of the Constitution, in an action brought under paragraph (1) shall be heard and determined by a panel of three judges in accordance with section 2284 of title 28, United States Code. It shall be the duty of the district court to advance on the docket and to expedite the disposition of any matter brought under this subsection.
"(A) Direct appeal to supreme court.-An appeal may be taken directly to the Supreme Court of the United States from any interlocutory or final judgment, decree, or order upon the validity of the appointment and continuance in office of the Secretary of the Interior under article I, section 6, clause 2, of the Constitution, entered in any action brought under this subsection. Any such appeal shall be taken by a notice of appeal filed within 20 days after such judgment, decree, or order is entered.
"(B) Jurisdiction.-The Supreme Court shall, if it has not previously ruled on the question presented by an appeal taken under subparagraph (A), accept jurisdiction over the appeal, advance the appeal on the docket, and expedite the appeal.
"(c) Effective Date.-This joint resolution shall take effect at 12:00 p.m. on January 20, 2009."
"(a) In General.-The compensation and other emoluments attached to the office of Secretary of State shall be those in effect January 1, 2007, notwithstanding any increase in such compensation or emoluments after that date under any provision of law, or provision which has the force and effect of law, that is enacted or becomes effective during the period beginning at noon of January 3, 2007, and ending at noon of January 3, 2013.
"(1) Jurisdiction.-Any person aggrieved by an action of the Secretary of State may bring a civil action in the United States District Court for the District of Columbia to contest the constitutionality of the appointment and continuance in office of the Secretary of State on the ground that such appointment and continuance in office is in violation of article I, section 6, clause 2, of the Constitution. The United States District Court for the District of Columbia shall have exclusive jurisdiction over such a civil action, without regard to the sum or value of the matter in controversy.
"(2) Three judge panel.-Any claim challenging the constitutionality of the appointment and continuance in office of the Secretary of State on the ground that such appointment and continuance in office is in violation of article I, section 6, clause 2, of the Constitution, in an action brought under paragraph (1) shall be heard and determined by a panel of three judges in accordance with section 2284 of title 28, United States Code. It shall be the duty of the district court to advance on the docket and to expedite the disposition of any matter brought under this subsection.
"(A) Direct appeal to supreme court.-An appeal may be taken directly to the Supreme Court of the United States from any interlocutory or final judgment, decree, or order upon the validity of the appointment and continuance in office of the Secretary of State under article I, section 6, clause 2, of the Constitution, entered in any action brought under this subsection. Any such appeal shall be taken by a notice of appeal filed within 20 days after such judgment, decree, or order is entered.
For provisions limiting compensation and emoluments of Secretary of the Treasury at levels in effect on Jan. 1, 1989, see section 1(a) of Pub. L. 103–2, set out as a note under section 301 of Title 31, Money and Finance.
Pub. L. 96–241, §1, May 3, 1980, 94 Stat. 343 , limited the compensation and other emoluments attached to the office of Secretary of State to those in effect Jan. 1, 1977, during the period beginning May 3, 1980, and ending on the date on which the first individual appointed to that office after May 3, 1980, ceases to hold that office.
Provisions of Pub. L. 93–178, §1, Dec. 10, 1973, 87 Stat. 697 , which fixed the compensation and other emoluments attached to the Office of Attorney General at level in effect on Jan. 1, 1969, notwithstanding any other provision of law enacted or becoming effective during period from noon, Jan. 3, 1969, through noon, Jan. 2, 1975, were repealed by Pub. L. 94–2, Feb. 18, 1975, 89 Stat. 4 , effective as of Feb. 4, 1975.
For adjustment of salaries under this section, see the executive order detailing the adjustment of certain rates of pay set out as a note under section 5332 of this title.
For prior year salary increases per the recommendation of the President, see Prior Salary Recommendations notes under section 358 of Title 2, The Congress.
For miscellaneous provisions dealing with adjustments of pay and limitations on use of funds to pay salaries in prior years, see notes under section 5318 of this title.


A BILL to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §21-1D-1, §21-1D-2, §21-1D-3, §21-1D-4, §21-1D-5, §21-1D-6, §21-1D-7, §21-1D-8 and §21-1D-9, all relating to the West Virginia Alcohol and Drug-Free Workplace Act; providing definitions; providing a statement of policy; requiring public improvement contractors to have and implement a drug-free workplace program that requires drug and alcohol testing; requiring a drug-free workplace policy to be posted at a public improvement construction site; requiring drug-free workplace records and contents be open for inspection; providing penalties; and providing that this article shall only apply to contracts awarded after this article takes effect.
This article shall be called the West Virginia Alcohol and Drug-Free Workplace Act.
(a) The term "alcohol test" means a procedure conducted to determine if an individual is under the influence of alcohol.
(b) The term "construction", as used in this article, means any construction, reconstruction, improvement, enlargement, painting, decorating or repair of any public improvement let to contract. The term "construction" does not include temporary or emergency repairs.
(c) The term "contractor" means any employer working on a public improvement without regard to whether they are serving as the prime or subcontractor to another.
(d) The term "drug test" means a procedure using a nine-panel drug screen in urine specimens that are collected from individuals for the purpose of scientifically analyzing the specimens to determine if the individual ingested, was injected or otherwise exposed to a drug of abuse.
(e) The term "drug of abuse" means any substance listed under subsection (h) of this section.
(f) The term "employee" means a laborer, mechanic or other worker. For the purposes of this article, employee does not include such persons as are employed or hired directly by a public authority on a regular or temporary basis engaged exclusively in making temporary or emergency repairs. Furthermore, employee does not include such persons employed by a contractor who does not work in public improvement construction.
(g) The term "medical review officer" means a physician who holds a certificate authorizing them to practice medicine and surgery or osteopathic medicine and surgery, has knowledge of substance abuse disorders, has the appropriate medical training to interpret and evaluate positive drug and alcohol test results together with a person's medical history and other relevant biomedical information, has successfully completed qualification training as outlined in the Code of Federal Regulations at 49 C. F. R. Part 40 §121 (c) and has passed an exam administered by a nationally recognized medical review officer certification board or subspecialty board for medical practitioners in the field of medical review of federally mandated drug testing.
(h) The term "nine-panel drug screen" means a drug-testing program that tests for marijuana, cocaine, opiates including hydromorphone, oxycodone, hydrocodone, phencyclidine, amphetamines, barbiturates, benzodiazepines, methadone and propoxyphene at the substance screening and confirmation limits where provided under federally mandated drug and alcohol testing programs or otherwise accepted as the industry standard.
(i) The term "public authority", as used in this article, means any officer, board or commission or other agency of the State of West Virginia authorized by law to enter into a contract for the construction of a public improvement, including any institution supported, in whole or in part, by public funds of the State of West Virginia and this article applies to expenditures of these institutions made, in whole or in part, from public funds.
(j) The term "public improvement", as used in this article, includes all buildings, roads, highways, bridges, streets, alleys, sewers, ditches, sewage disposal plants, waterworks, airports and all other structures upon which construction may be let to contract by the State of West Virginia.
(k) The term "random drug testing" means a procedure in which employees who perform safety-sensitive tasks are selected to undergo a drug test by a statistically valid random selection method without prearrangement or planning.
(l) The term "reasonable cause" means a belief based on facts and inferences based primarily upon, but not limited to: (1) Observable phenomena, such as direct observation of use, possession or distribution of alcohol or a controlled substance, or of the physical symptoms of being under the influence of alcohol or a controlled substance, such as, but not limited to, slurred speech, dilated pupils, odor of an alcoholic beverage or a controlled substance, changes in affect or dynamic mood swings; (2) a pattern of abnormal conduct, erratic or aberrant behavior or deteriorating work performance such as frequent absenteeism, excessive tardiness or recurrent accidents, that appears to be related to the use of alcohol or a controlled substance and does not appear to be attributable to other factors; (3) the identification of an employee as the focus of a criminal investigation into unauthorized possession, use or trafficking of a controlled substance; (4) a report of use of alcohol or a controlled substance provided by a reliable and credible source; and (5) repeated or flagrant violations of the safety or work rules of the employee's employer, that are determined by the employee's supervisor to pose a substantial risk of physical injury or property damage and that appears to be related to the use of alcohol or a controlled substance and that does not appear attributable to other factors.
(m) The term "safety-sensitive duty" means any task or duty fraught with such risks of injury to the employee or others that even a momentary lapse of attention or judgment, or both, can lead to serious bodily harm or death.
(n) The term "under the influence of alcohol" means a concentration of eight hundredths of one percent or more by weight of alcohol in an individual's blood or a concentration of eight hundredths of one gram or more by weight of alcohol per two hundred ten liters of an individual's breath.
It is hereby declared to be the policy of the State of West Virginia to require public improvement contractors to have and implement a drug-free workplace policy that requires drug and alcohol testing.
§21-1D-4. Drug-free workplace policy required for public improvement construction.
(C) Provides to the public authority false information regarding the contractor's drug-free workplace policy.
§21-1D-5. Employee drug-free workplace policy required to bid for a public improvement contract.
After the first day of July, two thousand eight, any solicitation for a public improvement contract shall require each contractor that submits a bid for the work to submit at the same time an affidavit that the contractor has a written plan for a drug-free workplace policy. A public improvement contract may not be awarded to a contractor who does not have a written plan for a drug-free workplace policy.
For subcontractors, compliance with this section may take place before their work on the public improvement is begun.
(C) Conduct a drug test or alcohol test of any employee who may have caused or contributed to an accident while conducting job duties where reasonable cause exists to suspect that the employee may be intoxicated or under the influence of a controlled substance not prescribed by the employee's physician when, but not limited to, the employer has evidence that an employee is or was using alcohol or a controlled substance drawn from specific documented, objective facts and reasonable inferences drawn from these facts in light of experience and training.
The drug or alcohol test shall be conducted as soon as possible after the accident occurred and after any necessary medical attention has been administered to the employee.
(D) Conduct a drug test or alcohol test of any employee when a trained supervisor has reasonable cause to believe that the employee has reported to work or is working under the influence of a drug of abuse or alcohol. Written documentation as to the nature of a supervisor's reasonable cause shall be created prior to the release of the test findings.
In order to ascertain and justify implementation of a reasonable cause test, all supervisors will be trained to recognize drug and alcohol related signs and symptoms.
(E) The testing of a urine specimen of an individual to determine if the individual ingested, was injected or otherwise introduced with a drug of abuse in a manner that conforms to scientifically accepted analytical methods and procedures that may include verification or confirmation of any positive test result by gas chromatography or mass spectrometry.
(D) A list of community resources where employees may seek assistance for themselves or their families.
(H) How to handle drug-free workplace responsibilities in a manner that is consistent with the applicable sections of any pertinent collective bargaining agreements.
§21-1D-6. Drug-free workplace written policy to be kept posted.
A clearly legible copy of the contractor's written drug-free workplace policy shall be kept posted in a prominent and easily accessible place at the public improvement construction site thereof by each contractor subject to the provisions of this article.
§21-1D-7. Drug-free workplace records and contents open for inspection.
Every contractor shall keep an accurate record showing the names, occupation and safety-sensitive status of all employees, in connection with the construction on the public improvement, and showing any drug tests or alcohol tests performed and employee education and supervisor training received, which record shall be open at all reasonable hours to the inspection of and the public authority which let the contract and its officers and agents. It is not necessary to preserve the record for a period longer than three years after the termination of the contract.
§21-1D-8. Penalties for violation of this article.
(a) Any contractor who violates any provision of this article is, for the first offense, guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one thousand dollars; for the second offense, the person is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one thousand dollars nor more than five thousand dollars; for the third or any subsequent offense, the person is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than five thousand dollars nor more than twenty-five thousand dollars and the contractor shall be excluded from bidding any additional new public improvement projects for a period of one year.
(b) Any person who directly or indirectly aids, requests or authorizes any other person to violate any of the provisions of this article is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than fifty dollars nor more than two hundred fifty dollars.
This article applies only to contracts for construction on public improvements awarded after the effective date of this article.
(NOTE: The purpose of this bill is to create the West Virginia Alcohol and Drug-Free Workplace Act, to require public improvement contractors to have and implement a drug-free workplace program that requires drug and alcohol testing be conducted by a contractor.


The Texas Medicaid Fraud Prevention Act allows whistleblowers to bring suit in the name of the State of Texas where a wrongdoer engages in conduct that defrauds the state or local government of its healthcare dollars. This statute is designed to address Medicaid fraud.
(B) not more than $10,000 for each violation that does not result in injury to a person described by Paragraph (A).
(l) If, after informal review, a person who has been ordered to pay a penalty fails to request a formal hearing in a timely manner, the department shall assess the penalty. The department shall give the person written notice of its action. The person shall pay the penalty not later than the 30th day after the date on which the person receives the notice.
(u) A person found liable for a violation under Subsection (c) that resulted in injury to an elderly person, as defined by Section 48.002(1), a disabled person, as defined by Section 48.002(8)(A), or a person younger than 18 years of age may not provide or arrange to provide health care services under the medical assistance program for a period of 10 years. The department by rule may provide for a period of ineligibility longer than 10 years. The period of ineligibility begins on the date on which the determination that the person is liable becomes final. This subsection does not apply to a person who operates a nursing facility or an ICF-MR facility.
(v) A person found liable for a violation under Subsection (c) that did not result in injury to an elderly person, as defined by Section 48.002(1), a disabled person, as defined by Section 48.002(8)(A), or a person younger than 18 years of age may not provide or arrange to provide health care services under the medical assistance program for a period of three years. The department by rule may provide for a period of ineligibility longer than three years. The period of ineligibility begins on the date on which the determination that the person is liable becomes final. This subsection does not apply to a person who operates a nursing facility or an ICF-MR facility.
Added by Acts 1987, 70th Leg., ch. 1052, § 2.04, eff. Sept. 1, 1987.
Amended by Acts 1995, 74th Leg., ch. 76, § 5.95(49), (53), eff. Sept. 1, 1995; Acts 1997, 75th Leg., ch. 1153, § 3.01(a), eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 12, §§ 1, 2, eff. Sept. 1, 1999.
(D) a managed care organization.
Added by Acts 1995, 74th Leg., ch. 824, § 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 1153, § 4.02, eff. Sept. 1, 1997.
(D) obstructs an investigation by the attorney general of an alleged unlawful act under this section.
Added by Acts 1995, 74th Leg., ch. 824, § 1, eff. Sept. 1, 1995. Amended by Acts 1997, 75th Leg., ch. 1153, § 4.03, eff. Sept. 1, 1997; Acts 1999, 76th Leg., ch. 233, § 4, eff. Sept. 1, 1999.
Added by Acts 1995, 74th Leg., ch. 824, § 1, eff. Sept. 1, 1995. Renumbered from V.T.C.A., Human Resources Code § 36.007 by Acts 1997, 75th Leg., ch. 1153, § 4.01(a) eff. Sept. 1, 1997.
Added by Acts 1995, 74th Leg., ch. 824, § 1, eff. Sept. 1, 1995. Renumbered from V.T.C.A., Human Resources Code § 36.008 by Acts 1997, 75th Leg., ch. 1153, § 4.01(a), eff. Sept. 1, 1997.
(B) a permit, license, or certification granted by the department or agency to a person who operates a nursing facility or an ICF-MR facility and who is found liable under Section 36.052.
(b) A person found liable under Section 36.052 for an unlawful act may not provide or arrange to provide health care services under the Medicaid program for a period of 10 years. The board of a state agency that operates part of the Medicaid program may by rule provide for a period of ineligibility longer than 10 years. The period of ineligibility begins on the date on which the determination that the person is liable becomes final. This subsection does not apply to a person who operates a nursing facility or an ICF-MR facility.
Added by Acts 1995, 74th Leg., ch. 824, § 1, eff. Sept. 1, 1995. Renumbered from V.T.C.A., Human Resources Code § 36.009 by Acts 1997, 75th Leg., ch. 1153, § 4.01(a), eff. Sept. 1, 1997. Amended by Acts 1997, 75th Leg., ch. 1153, § 4.06, eff. Sept. 1, 1997.
Added by Acts 1995, 74th Leg., ch. 824, § 1, eff. Sept. 1, 1995. Renumbered from V.T.C.A., Human Resources Code § 36.010 by Acts 1997, 75th Leg., ch. 1153, § 4.01(a), eff. Sept. 1, 1997.
Added by Acts 1995, 74th Leg., ch. 824, § 1, eff. Sept. 1, 1995. Renumbered from V.T.C.A., Human Resources Code § 36.011 by Acts 1997, 75th Leg., ch. 1153, § 4.01(a), eff. Sept. 1, 1997.
Added by Acts 1995, 74th Leg., ch. 824, § 1, eff. Sept. 1, 1995. Renumbered from V.T.C.A., Human Resources Code § 36.012 by Acts 1997, 75th Leg., ch. 1153, § 4.01(a), eff. Sept. 1, 1997.
Added by Acts 1995, 74th Leg., ch. 824, § 1, eff. Sept. 1, 1995. Renumbered from V.T.C.A., Human Resources Code § 36.003 by Acts 1997, 75th Leg., ch. 1153, § 4.01(b), eff. Sept. 1, 1997.
Stats. 1995 74th Leg. Sess. Ch. 824, effective September 1, 1995; Stats. 1997 75th Leg. Sess. Chs. 959, 1153, §, Stats. 2001 77th Leg. Sess. Ch. 1481, effective September 1, 2001 (expiration date amended); Stats. 2005 79th Leg. Sess., Ch. 806 (S.B. 563), § 7, effective September 1, 2005; Stats. 2007, 80th Leg. Sess., Ch. 29, § 1, effective May 4, 2007.
Added by Acts 1995, 74th Leg., ch. 824, § 1, eff. Sept. 1, 1995. Renumbered from V.T.C.A., Human Resources Code § 36.005 by Acts 1997, 75th Leg., ch. 1153, § 4.01(b), eff. Sept. 1, 1997. Amended by Acts 1997, 75th Leg., ch. 1153, § 4.05, eff. Sept. 1, 1997.
(e) Except as ordered by a court for good cause shown, the office of the attorney general may not produce for inspection or copying or otherwise disclose the contents of documentary material obtained under this section to a person other than an authorized employee of the attorney general without the consent of the person who produced the documentary material. The attorney general shall prescribe reasonable terms and conditions allowing the documentary material to be available for inspection and copying by the person who produced the material or by an authorized representative of that person. The attorney general may use the documentary material or copies of it as the attorney general determines necessary in the enforcement of this chapter, including presentation before a court.
Added by Acts 1995, 74th Leg., ch. 824, § 1, eff. Sept. 1, 1995. Renumbered from V.T.C.A., Human Resources Code § 36.006 by Acts 1997, 75th Leg., ch. 1153, § 4.01(b), eff. Sept. 1, 1997.
To the extent permitted by 31 U.S.C. Sections 3729–3733, the attorney general may bring an action as relator under 31 U.S.C. Section 3730 with respect to an act in connection with the Medicaid program for which a person may be held liable under 31 U.S.C. Section 3729. The attorney general may contract with a private attorney to represent the state under this section.
Added by Acts 1997, 75th Leg., ch. 1153, § 4.07(a), eff. Sept. 1, 1997.
Added by Acts 1997, 75th Leg., ch. 1153, § 4.08, eff. Sept. 1, 1997.
(b) The petition shall be filed in camera and shall remain under seal until at least the 60th day after the date the petition is filed. The petition may not be served on the defendant until the court orders service on the defendant.
(c) The state may elect to intervene and proceed with the action not later than the 60th day after the date the attorney general receives the petition and the material evidence and information.
(d) The state may, for good cause shown, move the court to extend the time during which the petition remains under seal under Subsection (b). A motion under this subsection may be supported by affidavits or other submissions in camera.
(e) An action under this subchapter may be dismissed before the end of the period prescribed by Subsection (b), as extended as provided by Subsection (d), if applicable, only if the court and the attorney general consent in writing to the dismissal and state their reasons for consenting.
Added by Stats. 2007, 80th Leg. Sess., Ch. 29, § 2, effective May 4, 2007.
A defendant is not required to file an answer to a petition filed under this subchapter until the 20th day after the date the petition is unsealed and served on the defendant in compliance with the Texas Rules of Civil Procedure.
Stats. 1997 75th Leg. Sess. Ch. 1153, effective September 1, 1997; Stats. 2001 77th Leg. Sess. Ch. 1481, effective September 1, 2001 (expiration date amended); Stats. 2005 79th Leg. Sess., Ch. 806 (S.B. 563), § 12, effective September 1, 2005; Stats. 2007, 80th Leg. Sess., Ch. 29, § 4, effective May 4, 2007.
(c) A payment to a person under this section shall be made from the proceeds of the action. A person receiving a payment under this section is also entitled to receive from the defendant an amount for reasonable expenses, reasonable attorney’s fees, and costs that the court finds to have been necessarily incurred. The court’s determination of expenses, fees, and costs to be awarded under this subsection shall be made only afterthe defendant has been found liable in the action.
Stats. 1997 75th Leg. Sess. Ch. 1153, effective September 1, 1997; Stats. 2001 77th Leg. Sess. Ch. 1481, effective September 1, 2001 (expiration date amended); Stats. 2005 79th Leg. Sess., Ch. 806 (S.B. 563), § 13, effective September 1, 2005; Stats. 2007, 80th Leg. Sess., Ch. 29, § 5, effective May 4, 2007.
(b) A person may not bring an action under this subchapter that is based on the public disclosure of allegations or transactions in a criminal or civil hearing, in a legislative or administrative report, hearing, audit, or investigation, or from the news media, unless the person bringing the action is an original source of the information. In this subsection, “original source” means an individual who has direct and independent knowledge of the information on which the allegations are based and has voluntarily provided the information to the state before filing an action under this subchapter that is based on the information.
(a) A person commits an offense if the person commits an unlawful act under Section 36.002.
(7) a felony of the first degree if the value of any payment or monetary or in-kind benefit provided under the Medicaid program, directly or indirectly, as a result of the unlawful act is $200,000 or more.
(c) If conduct constituting an offense under this section also constitutes an offense under another provision of law, including a provision in the Penal Code, the actor may be prosecuted under either this section or the other provision.
Added by Acts 1997, 75th Leg., ch. 1153, § 4.09, eff. Sept. 1, 1997.
(I) another state agency authorized to regulate a provider who receives or is eligible to receive payment for a health care service under the Medicaid program.
(b) A licensing authority shall revoke a license issued by the authority to a person if the person is convicted of a felony under Section 36.131. In revoking the license, the licensing authority shall comply with all procedures generally applicable to the licensing authority in revoking licenses.
(a) The commission may grant an award to an individual who reports activity that constitutes fraud or abuse of funds in the state Medicaid program or reports overcharges in the program if the commission determines that the disclosure results in the recovery of an overcharge or in the termination of the fraudulent activity or abuse of funds.
(b) The commission shall determine the amount of an award. The award must be equal to not less than 10 percent of the savings to this state that result from the individual’s disclosure. In determining the amount of the award, the commission shall consider how important the disclosure is in ensuring the fiscal integrity of the program.
(c) An award under this section is subject to appropriation. The award must be paid from money appropriated to or otherwise available to the commission, and additional money may not be appropriated to the commission for the purpose of paying the award.
(d) Payment of an award under this section from federal funds is subject to the permissible use under federal law of funds for this purpose.
(e) A person who brings an action under Subchapter C, Chapter 36, Human Resources Code, is not eligible for an award under this section.
Added by Acts 1997, 75th Leg., ch. 165, § 14.16, eff. Sept. 1, 1997; Acts 1997, 75th Leg., ch. 1153, § 1.06(a), eff. Sept. 1, 1997.
(a) The commission, through the commission’s office of investigations and enforcement, is responsible for the investigation of fraud in the provision of health and human services and the enforcement of state law relating to the provision of those services.
(3) maximizing opportunities for referral of cases to the office of the attorney general.
(c) The commission shall train office staff to enable the staff to pursue priority Medicaid and welfare fraud and abuse cases as necessary.
(d) The commission may require employees of health and human services agencies to provide assistance to the commission in connection with the commission’s duties relating to the investigation of fraud in the provision of health and human services.
(e) The commission by rule shall set specific claims criteria that, when met, require the office to begin an investigation.
Added by Acts 1997, 75th Leg., ch. 1153, § 1.06(a), eff. June 20, 1997.
Amended by Acts 1999, 76th Leg., ch. 1289, § 3, eff. Sept. 1, 1999.
(7) the commission and the office of the attorney general to submit information requested by the comptroller about each resolved case for the comptroller’s use in improving fraud detection.
(b) An exchange of information under this section between the office of the attorney general and the commission or a health and human services agency does not affect whether the information is subject to disclosure under Chapter 552.
(c) The commission and the office of the attorney general shall jointly prepare and submit a semiannual report to the governor, lieutenant governor, and speaker of the house of representatives concerning the activities of those agencies in detecting and preventing fraud, waste, and abuse under the state Medicaid program. The report may be consolidated with any other report relating to the same subject matter the commission or office of the attorney general is required to submit under other law.
(d) The commission and the office of the attorney general may not assess or collect investigation and attorney’s fees on behalf of any state agency unless the office of the attorney general or other state agency collects a penalty, restitution, or other reimbursement payment to the state.
(e) The commission shall refer a case of suspected fraud, waste, or abuse under the state Medicaid program to the appropriate district attorney, county attorney, city attorney, or private collection agency if the attorney general fails to act within 30 days of referral of the case to the office of the attorney general. A failure by the attorney general to act within 30 days constitutes approval by the attorney general under Section 2107.003.
(f) The district attorney, county attorney, city attorney, or private collection agency may collect and retain costs associated with the case and 20 percent of the amount of the penalty, restitution, or other reimbursement payment collected.
Added by Acts 1997, 75th Leg., ch. 1153, § 1.06(a), eff. Sept. 1, 1997.
(a) The commission and the attorney general shall execute a memorandum of understanding under which the commission shall provide investigative support as required to the attorney general in connection with cases under Subchapter B, Chapter 36, Human Resources Code. Under the memorandum of understanding, the commission shall assist in performing preliminary investigations and ongoing investigations for actions prosecuted by the attorney general under Subchapter C, Chapter 36, Human Resources Code.
(b) The memorandum of understanding must provide that the commission is not required to provide investigative support in more than 100 open investigations in a fiscal year.
(2) the time by which a referral should be made.
(b) The Texas Department of Health and the Texas Department of Human Services, in cooperation with the commission, shall periodically set a goal of the number of potential cases of fraud, waste, or abuse under the state Medicaid program that each agency will attempt to identify and refer to the commission. The commission shall include information on the agencies’ goals and the success of each agency in meeting the agency’s goal in the report required by Section 531.103(c).
(a) The commission shall use learning or neural network technology to identify and deter fraud in the Medicaid program throughout this state.
(b) The commission shall contract with a private or public entity to develop and implement the technology. The commission may require the entity it contracts with to install and operate the technology at locations specified by the commission, including commission offices.
(c) The data used for neural network processing shall be maintained as an independent subset for security purposes.
(d) The commission shall require each health and human services agency that performs any aspect of the state Medicaid program to participate in the implementation and use of the technology.
(e) The commission shall maintain all information necessary to apply the technology to claims data covering a period of at least two years.
(f) The commission shall refer cases identified by the technology to the commission’s office of investigations and enforcement or the office of the attorney general, as appropriate.
(g) Each month, the learning or neural network technology implemented under this section must match bureau of vital statistics death records with Medicaid claims filed by a provider. If the commission determines that a provider has filed a claim for services provided to a person after the person’s date of death, as determined by the bureau of vital statistics death records, the commission shall refer the case for investigation to the commission’s office of investigations and enforcement.
Amended by Acts 1999, 76th Leg., ch. 215, § 2, eff. Sept. 1, 1999.
(a) The commission shall use an automated fraud investigation tracking system through the commission’s office of investigations and enforcement to monitor the progress of an investigation of suspected fraud, abuse, or insufficient quality of care under the state Medicaid program.
(4) generate standard letters to a provider regarding the status or outcome of an investigation.
(c) The commission shall require each health and human services agency that performs any aspect of the state Medicaid program to participate in the implementation and use of the automated fraud investigation tracking system.
Added by Acts 1999, 76th Leg., ch. 206, § 1, eff. Sept. 1, 1999.
(a) The commission shall use an automated recovery monitoring system to monitor the collections process for a settled case of fraud, abuse, or insufficient quality of care under the state Medicaid program.
(2) provide immediate notice of a provider who has agreed to a monetary payment plan or to deductions through the recoupment program from subsequent Medicaid claims who fails to comply with the settlement agreement, including providing notice of a provider who does not make a scheduled payment or who pays less than the scheduled amount.
(a) The Medicaid and Public Assistance Fraud Oversight Task Force advises and assists the commission and the commission’s office of investigations and enforcement in improving the efficiency of fraud investigations and collections.
(7) Texas Department of Insurance, appointed by the commissioner of insurance.
(c) The comptroller or the comptroller’s designee serves as the presiding officer of the task force. The task force may elect any other necessary officers.
(d) The task force shall meet at least once each fiscal quarter at the call of the presiding officer.
(e) The appointing agency is responsible for the expenses of a member’s service on the task force. Members of the task force receive no additional compensation for serving on the task force.
(2) any additional information the task force requires.
(2) post-fraud referrals received and accepted or rejected from the commission’s case management system or the case management system of a health and human services agency.
(2) ensure that a toll-free hotline for reporting suspected fraud in programs administered by the commission or a health and human services agency is maintained and promoted, either by the commission or by a health and human services agency.
(c) The commission shall develop a cost-effective method of identifying applicants for public assistance in counties bordering other states and in metropolitan areas selected by the commission who are already receiving benefits in other states. If economically feasible, the commission may develop a computerized matching system.
(2) establish a computerized matching system with the Texas Department of Criminal Justice to prevent an incarcerated individual from illegally receiving public assistance benefits administered by the commission.
(e) The commission shall submit to the governor and Legislative Budget Board a semiannual report on the results of computerized matching of commission information with information from neighboring states, if any, and information from the Texas Department of Criminal Justice. The report may be consolidated with any other report relating to the same subject matter the commission is required to submit under other law.


§ 18-29-403.1 Minimum number of fixtures.
Plumbing fixtures shall be provided for each occupancy and use in the minimum number shown in Table § 18-29-403.1. Occupancies and uses not shown in Table § 18-29-403.1 shall be considered individually by the building commissioner. Occupancies and the number of persons (for various occupancies and uses) shall be as determined by Chapter 13-56.
For a printer-friendly PDF version of Table § 18-29-403.1, please click here.
Where plumbing fixtures are required, separate facilities shall be provided for both genders.
Separate facilities shall not be required in residential occupancies.
Separate employee facilities shall not be required in occupancies in which five or less people are employed.
Separate facilities shall not be required in structures or tenant spaces in which food or beverage is served for consumption within the structure or tenant space when the total occupant load is five or less, including both employees and customers.
§ 18-29-403.3 Number of occupants for both genders.
The required water closets, lavatories, and showers or bathtubs shall be distributed equally between genders based on the percentage of both genders anticipated in the occupant load. The occupant load shall be composed of 50 percent for both genders, unless statistical data approved by the building commissioner indicate a different distribution of both genders.
§ 18-29-403.4 Location of employee toilet facilities in occupancies other than assembly or mercantile.
Access to toilet facilities in occupancies other than mercantile and assembly occupancies shall be located within the employees regular working area. The required toilet facilities shall be located not more than one story above or below the employees regular working area and the path of travel to such facilities shall not exceed a distance of 200 feet (61 m). Employee facilities shall be either separate facilities or public customer facilities.
Exception: Facilities that are required for employees in storage structures or kiosks, situated in adjacent structures under the same ownership, lease or control, shall be located at a maximum travel distance of 500 feet (152 m) from the employees regular working area.
§ 18-29-403.5 Toilet facilities in mercantile and assembly occupancies.
Employees shall be provided with toilet facilities in buildings and tenant spaces utilized as restaurants, nightclubs, places of public assembly and mercantile occupancies. The employee facilities shall be either separate facilities or public customer facilities.
Exception: Employee toilet facilities shall not be required in tenant spaces of 900 square feet (84 m2) or less where the travel distance from the main entrance of the tenant space to a central toilet area does not exceed 200 feet (61 m) and such central toilet facilities are located not more than one story above or below the tenant space.
Customers, patrons and visitors shall be provided with public toilet facilities in structures and tenant spaces intended for public use and utilized as restaurants, nightclubs, places of assembly, business and mercantile occupancies. Customer toilet facilities shall be located not more than one story above or below the space required to be provided with customer toilet facilities and the path of travel to such facilities shall not exceed a distance of 200 feet (61 m). In covered mall buildings, required facilities shall be based on total square footage, and facilities shall be installed in each individual store or in a central toilet area located in accordance with this section. The maximum travel distance to the central toilet facilities in covered mall buildings shall be measured from the main entrance of any store or tenant space.
Exception: Toilet facilities for the public shall not be required in mercantile units of less than seven thousand five hundred (7500) square feet in gross area. In mercantile units of seven thousand five hundred (7500) square feet or more in gross area the occupancy content shall be determined by dividing the net floor area used by the public, as shown in an actual floor plan layout, by one hundred (100), or a minimum of twenty- five percent (25%) of the gross area whichever is smaller.
Required facilities shall be free of charge and designated by legible signs for both genders. It is prohibited to charge any sum of money for the use of any toilet facility in any municipally owned building or any building that is open to accommodate or serve the public.
As used herein, building that is open to accommodate or serve the public; shall include the following: hotel, motel, inn, department store, restaurant, cafeteria, lunchroom, lunch counter, soda fountain, tavern, motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment, airport, railroad station or terminal, bus station or terminal, clothing store, food store, gas station, garage, bank or office building.
Drinking fountains shall be of an approved type and shall be located on the same floor or one floor above or below and within 200 feet (61 m) of all locations at which workers are regularly employed. No bubbler shall be installed on or above any plumbing fixture other than a drinking fountain. No drinking fountain or bubbler shall be installed in any toilet room, except in penal institutions.
In multiple dwellings and institutional units, toilet rooms shall be provided on every floor having sleeping accommodations.
Except in family units, no bathroom or toilet room shall open directly into a room where food is prepared, stored or served without an intervening vestibule.
§ 18-29-404 Accessible Plumbing Facilities.


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The first line of cases comes to us from the Eighth Appellate District. In the case of Siara Management v. Nedley, 1992 Ohio App. LEXIS 5265 (Oct. 15, 1992) Cuyahoga App. No. 61433, unreported, the lease called for the tenant to pay $30.00 in late fees if he was late five days, and $70.00 more if he were late ten days. The landlord tried to charge these amounts to the tenant and litigation ensued.
(1) uncertain as to amount and difficult of proof, (2) the contract as a whole is not so manifestly unconscionable, unreasonable, and disproportionate in amount as to justify the conclusion that it does not express the true intention of the parties, and if (3) the contract is consistent with the conclusion that it was the intention of the parties that damages in the amount stated should follow the breach thereof.
In Nedley, the landlord did not make it past the first hurdle of the test. All that the landlord argued in court was that the late payment by tenants led to late payment charges assessed to the landlord by his creditors. The Court reasoned that “Any party due money could claim that the resultant decrease in cash flow might result in late charges against it. That is unduly speculative.” Had the landlord come to the court with evidence that the tenant’s late payment had caused him to incur damages in specific amounts, then those specific amounts might have been recoverable.
The Eighth District Court of Appeals also came to a similar conclusion in 200 W. Apartments v. Foreman, 1994 Ohio App. LEXIS 4081 (September 15, 1994), Cuyahoga Co. App. No. 66107 regarding a late fee of only $2.00 per day. In that case the court also found it significant that the landlord had shown no proof of its actual damages.
The Eleventh District Court of Appeals again came to the same conclusion in the case of Wadsworth v. Starcher, 1998 Ohio App. LEXIS 2909 (June 26, 1998) Trumbull Co. App. No. 97-A-0054. In Wadsworth, the Court agreed with the trial court that $5.00 per day in late charges over 92 days was not enforceable, and that the trial court’s reduction of the late fees to $100.00 was proper.
It is clear that “parties to a lease agreement can agree to anything they wish within the limits of the law.” Village Station Assoc. v. Geauga Co. (1992), 84 Ohio App.3d 448 at 451. The real question is: what are “the limits of the law”? R.C. 5321.14 prohibits parties to a lease from agreeing on illegal or unconscionable terms.
Where there is only an oral contract between the landlord and the tenant, at least one Ohio Court has held that no late fees can be assessed. Neubauer v. Patzkowsky, 1992 Ohio App. LEXIS 2919 (June 2, 1992) Franklin Co. App. No. 91AP-1236.
A party may voluntarily relinquish a known right through words or by conduct. State ex rel. Ford v. Cleveland Bd. Of Edn. (1943), 141 Ohio St. 124. In Galaxy Development Ltd. Partnership v. Quadax, Inc., 2000 Ohio App. LEXIS 4651 (October 5, 2000) Cuyahoga Co. App. No. 76769, the Eighth District Court of Appeals found that the landlord waived its right to collect holdover rent from the tenant by continuing to accept the original rental payments after expiration of the lease. The Galaxy court cited Finkbeiner v. Lutz (1975), 44 Ohio App.2d 223, wherein lessees failed to make timely payments of rent on numerous occasions and lessors accepted the late payments. The Finkbeiner court held that the failure of the lessors to make timely objection to the late payment of rent amounted to a waiver.
Courts in Ohio will not allow a landlord to collect late fees which have piled up over a significant period of time.
Where a landlord can get into trouble with late fees is in a dispute over a security deposit. Let’s say the landlord has collected a security deposit in the amount of $500.00. The tenant leaves at the end of the lease term. The landlord finds $300.00 in damages at the apartment and also assesses $250.00 in late fees. Perhaps the landlord cannot show the court actual damages in the specific amount of $250.00. Maybe there was only an oral agreement between the landlord or the tenant. Perhaps the $250.00 in fees resulted from the landlord’s practice of letting the late fees pile up over time.
If any of these are the case, there is a good chance that even in the more landlord sympathetic appellate districts, the landlord will only be allowed to charge the tenant a greatly reduced amount if the facts fit the first example, and perhaps nothing at all if the facts fit the second or third examples.
This will leave $100.00 or more that should have been returned to the tenant, entitling the tenant to double damages and attorneys fees under Ohio Revised Code Section 5321.16. While double damages in the amount of $200.00 might not be all that big of a deal, wait until you get to the mandatory hearing on reasonable attorneys fees. Now we’re talking real money.
If you are trying to evict a problem tenant and your only basis is a failure to pay late fees, then the arguments above may have a bearing upon the issue of who has the right to possession when you get to the F.E.D. hearing. If a tenant can show the court that he stood ready at all times to pay the late fees, but that the landlord was holding out for an unreasonable amount, or if the tenant can show that he and the landlord engaged in a pattern of conduct of acceptance of late payments without protest, this could defeat the eviction action.
One of the lessons to be learned from all of this is that late fees are something of a minefield when it comes to using them to reduce the amount of the security deposit returned to a tenant. The same is true when we are talking about evictions based upon a failure of the tenant to pay late fees.
Landlords should be aware of the problems that may arise when late fees are argued. Informing your attorney of your past practices with regard to late fees can save you both a lot of embarrassment, and perhaps allow the attorney to alter course in his arguments to get around potential hurdles.

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A tort is the unlawful violation of a private legal right other than a mere breach of contract, express or implied. A tort may also be the violation of a public duty if, as a result of the violation, some special damage accrues to the individual.
Orig. Code 1863, § 2894; Code 1868, § 2900; Code 1873, § 2951; Code 1882, § 2951; Civil Code 1895, § 3807; Civil Code 1910, § 4403; Code 1933, § 105-101.