73R8462 PB-D
By Naishtat H.B. No. 1983
Substitute the following for H.B. No. 1983:
By Moffat C.S.H.B. No. 1983
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the employment of children; providing criminal and
1-3 administrative penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 12, Chapter 531, Acts of the 67th
1-6 Legislature, Regular Session, 1981 (Article 5181.1, Vernon's Texas
1-7 Civil Statutes), is amended to read as follows:
1-8 Sec. 12. PENALTY. An offense under this Act is a Class A
1-9 <C> misdemeanor.
1-10 SECTION 2. Chapter 531, Acts of the 67th Legislature,
1-11 Regular Session, 1981 (Article 5181.1, Vernon's Texas Civil
1-12 Statutes), is amended by adding Section 13 to read as follows:
1-13 Sec. 13. ADMINISTRATIVE PENALTY. (a) If the commission
1-14 determines that a person who employs a child has violated this Act
1-15 or a rule adopted under this Act, the commission may assess an
1-16 administrative penalty against that person as provided by this
1-17 section.
1-18 (b) The penalty for a violation may be in an amount not to
1-19 exceed $1,000.
1-20 (c) The amount of the penalty shall be based on:
1-21 (1) the seriousness of the violation, including the
1-22 nature, circumstances, extent, and gravity of any prohibited acts;
1-23 (2) the history of previous violations;
1-24 (3) the amount necessary to deter future violations;
2-1 (4) efforts to correct the violation; and
2-2 (5) any other matter that justice may require.
2-3 (d) If, after examination of a possible violation and the
2-4 facts relating to that possible violation, the commission
2-5 determines that a violation has occurred, the commission shall
2-6 issue a report that states the facts on which the determination is
2-7 based, the fact that an administrative penalty is to be imposed,
2-8 and the amount of the penalty.
2-9 (e) Not later than the 14th day after the date the report is
2-10 issued, the commission shall give written notice of the report to
2-11 the person charged with the violation. The notice may be given by
2-12 certified mail. The notice must include a brief summary of the
2-13 alleged violation and a statement of the amount of the recommended
2-14 penalty and must inform the person that the person has a right to a
2-15 hearing on the occurrence of the violation, the amount of the
2-16 penalty, or both the occurrence of the violation and the amount of
2-17 the penalty.
2-18 (f) Not later than the 20th day after the date the person
2-19 receives the notice, the person in writing may accept the
2-20 determination and recommended penalty of the commission or may make
2-21 a written request for a hearing on the occurrence of the violation,
2-22 the amount of the penalty, or both the occurrence of the violation
2-23 and the amount of the penalty.
2-24 (g) If the person accepts the determination and recommended
2-25 penalty of the commission, the commission by order shall approve
2-26 the determination and impose the recommended penalty.
2-27 (h) If the person requests a hearing or fails to respond to
3-1 the notice in accordance with Subsection (f) of this section, the
3-2 commission shall set a hearing and give notice of the hearing to
3-3 the person. The hearing shall be conducted in the manner provided
3-4 for a commission hearing under the Texas Unemployment Compensation
3-5 Act (Article 5221b-1 et seq., Vernon's Texas Civil Statutes) and
3-6 its subsequent amendments. The hearings examiner shall make
3-7 findings of fact and conclusions of law and promptly issue to the
3-8 commission a proposal for a decision about the occurrence of the
3-9 violation and the amount of a proposed penalty. Based on the
3-10 findings of fact, conclusions of law, and proposal for a decision,
3-11 the commission by order may find that a violation has occurred and
3-12 impose a penalty or may find that no violation occurred.
3-13 (i) The notice of the commission's order must include a
3-14 statement of the right of the person to judicial review of the
3-15 order.
3-16 (j) Not later than the 30th day after the date the
3-17 commission's order is final, the person shall:
3-18 (1) pay the amount of the penalty;
3-19 (2) pay the amount of the penalty and file a petition
3-20 for judicial review contesting the occurrence of the violation, the
3-21 amount of the penalty, or both the occurrence of the violation and
3-22 the amount of the penalty; or
3-23 (3) without paying the amount of the penalty, file a
3-24 petition for judicial review contesting the occurrence of the
3-25 violation, the amount of the penalty, or both the occurrence of the
3-26 violation and the amount of the penalty.
3-27 (k) Within the 30-day period, a person who acts under
4-1 Subsection (j)(3) of this section may:
4-2 (1) stay enforcement of the penalty by:
4-3 (A) paying the amount of the penalty to the
4-4 court for placement in an escrow account; or
4-5 (B) giving to the court a supersedeas bond
4-6 approved by the court for the amount of the penalty and that is
4-7 effective until all judicial review of the commission's order is
4-8 final; or
4-9 (2) request the court to stay enforcement of the
4-10 penalty by:
4-11 (A) filing with the court a sworn affidavit of
4-12 the person stating that the person is financially unable to pay the
4-13 amount of the penalty and is financially unable to give the
4-14 supersedeas bond; and
4-15 (B) giving a copy of the affidavit to the
4-16 commission by certified mail.
4-17 (l) If the commission receives a copy of an affidavit under
4-18 Subsection (k)(2) of this section, the commission may file with the
4-19 court not later than the fifth day after the date the copy is
4-20 received a contest to the affidavit. The court shall hold a
4-21 hearing on the facts alleged in the affidavit as soon as
4-22 practicable and shall stay the enforcement of the penalty on
4-23 finding that the alleged facts are true. The person who files an
4-24 affidavit has the burden of proving that the person is financially
4-25 unable to pay the amount of the penalty and to give a supersedeas
4-26 bond.
4-27 (m) If the person does not pay the amount of the penalty and
5-1 the enforcement of the penalty is not stayed, the commission may
5-2 refer the matter to the attorney general for collection of the
5-3 amount of the penalty.
5-4 (n) Judicial review of the order of the commission:
5-5 (1) is instituted by bringing an action as provided by
5-6 Section 6, Texas Unemployment Compensation Act (Article 5221b-4,
5-7 Vernon's Texas Civil Statutes), and its subsequent amendments; and
5-8 (2) is under the substantial evidence rule.
5-9 (o) If the court sustains the occurrence of the violation,
5-10 the court may uphold or reduce the amount of the penalty and order
5-11 the person to pay the full or reduced amount of the penalty. If
5-12 the court does not sustain the occurrence of the violation, the
5-13 court shall order that no penalty is owed.
5-14 (p) When the judgment of the court becomes final, the court
5-15 shall proceed under this subsection. If the person paid the amount
5-16 of the penalty and if that amount is reduced or is not upheld by
5-17 the court, the court shall order that the appropriate amount plus
5-18 accrued interest be remitted to the person. The rate of the
5-19 interest is the rate charged on loans to depository institutions by
5-20 the New York Federal Reserve Bank, and the interest shall be paid
5-21 for the period beginning on the date the penalty was paid and
5-22 ending on the date the penalty is remitted. If the person gave a
5-23 supersedeas bond and if the amount of the penalty is not upheld by
5-24 the court, the court shall order the release of the bond. If the
5-25 person gave a supersedeas bond and if the amount of the penalty is
5-26 reduced, the court shall order the release of the bond after the
5-27 person pays the amount.
6-1 (q) A penalty collected under this section shall be remitted
6-2 to the comptroller for deposit in the general revenue fund.
6-3 SECTION 3. (a) The change in law made by Section 12,
6-4 Chapter 531, Acts of the 67th Legislature, Regular Session, 1981
6-5 (Article 5181.1, Vernon's Texas Civil Statutes), as amended by
6-6 Section 1 of this Act, applies only to the punishment for an
6-7 offense committed on or after the effective date of this Act. For
6-8 purposes of this section, an offense is committed before the
6-9 effective date of this Act if any element of the offense occurs
6-10 before the effective date.
6-11 (b) An offense committed before the effective date of this
6-12 Act is covered by the law in effect when the offense was committed,
6-13 and the former law is continued in effect for that purpose.
6-14 SECTION 4. This Act takes effect September 1, 1993.
6-15 SECTION 5. The importance of this legislation and the
6-16 crowded condition of the calendars in both houses create an
6-17 emergency and an imperative public necessity that the
6-18 constitutional rule requiring bills to be read on three several
6-19 days in each house be suspended, and this rule is hereby suspended.