By:  Harris of Dallas                                   S.B. No. 77
                                 A BILL TO BE ENTITLED
                                        AN ACT
    1-1  relating to the authority of certain state financial regulatory
    1-2  agencies to enforce laws pertaining to certain institutions and
    1-3  loan and securities transactions that they regulate; providing
    1-4  administrative penalties.
    1-5        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-6        SECTION 1.  Chapter 8, Texas Savings and Loan Act (Article
    1-7  852a, Vernon's Texas Civil Statutes), is amended by adding Section
    1-8  8.14 to read as follows:
    1-9        Sec. 8.14.  ADMINISTRATIVE PENALTY; RESTITUTION ORDER.
   1-10  (a)  The commissioner may assess an administrative penalty against
   1-11  a person who knowingly and wilfully violates or causes a violation
   1-12  of this Act or a rule adopted under this Act.  The commissioner may
   1-13  order a person who knowingly and wilfully violates or causes a
   1-14  violation of this Act or a rule adopted under this Act to make
   1-15  restitution to an identifiable person injured by the violation.
   1-16        (b)  The amount of the penalty may not exceed $25,000 for
   1-17  each day of violation and for each act of violation.
   1-18        (c)  In determining the amount of a penalty, the commissioner
   1-19  shall consider:
   1-20              (1)  the extent of actual or potential harm to a third
   1-21  party;
   1-22              (2)  the history of previous violations;
   1-23              (3)  the amount necessary to deter future violations;
   1-24              (4)  efforts to correct the violation;
    2-1              (5)  enforcement costs relating to the violation,
    2-2  including investigation costs, witness fees, and deposition
    2-3  expenses; and
    2-4              (6)  any other matters that justice may require.
    2-5        (d)  In determining the amount of restitution, the
    2-6  commissioner shall consider:
    2-7              (1)  the extent of actual harm to the third party in
    2-8  whose favor restitution is ordered; and
    2-9              (2)  any other matters that justice may require.
   2-10        (e)  If after an examination of the facts the commissioner
   2-11  concludes that the person did commit a violation, the commissioner
   2-12  may issue a preliminary report stating the facts on which the
   2-13  commissioner based that conclusion, recommending that an
   2-14  administrative penalty be imposed or a restitution order entered,
   2-15  or both, under this section, and recommending the amount of the
   2-16  proposed penalty or restitution.
   2-17        (f)  The commissioner shall give written notice of the report
   2-18  to the person charged with committing the violation.  The notice
   2-19  must include a brief summary of the facts, a statement of the
   2-20  amount of the recommended penalty or restitution, or both, and a
   2-21  statement of the person's right to an informal review of the
   2-22  occurrence of the violation, the amount of the penalty or
   2-23  restitution, or both the occurrence and the amount.
   2-24        (g)  Not later than the 10th day after the date on which the
   2-25  person charged with committing the violation receives the notice,
   2-26  the person may either give the commissioner written consent to the
   2-27  report, including the recommended amounts, or make a written
    3-1  request for an informal review by the commissioner.
    3-2        (h)  If the person charged with committing the violation
    3-3  consents to the amounts recommended by the commissioner or fails to
    3-4  timely request an informal review, the commissioner shall assess
    3-5  the penalty or enter the restitution order, or both.  The
    3-6  commissioner shall give the person written notice of the
    3-7  commissioner's action.  The person shall pay the required amounts
    3-8  not later than the 30th day after the date on which the person
    3-9  receives the notice.
   3-10        (i)  If the person charged with committing a violation
   3-11  requests an informal review as provided by Subsection (g) of this
   3-12  section, the commissioner shall conduct the review.  The
   3-13  commissioner shall give the person written notice of the results of
   3-14  the review.
   3-15        (j)  Not later than the 10th day after the date on which the
   3-16  person charged with committing the violation receives the notice
   3-17  prescribed by Subsection (i) of this section, the person may make
   3-18  to the commissioner a written request for a hearing.  The hearing
   3-19  must be conducted in accordance with the Administrative Procedure
   3-20  and Texas Register Act (Article 6252-13a, Vernon's Texas Civil
   3-21  Statutes) and its subsequent amendments.
   3-22        (k)  If after informal review a person who has been ordered
   3-23  to pay a penalty or make restitution, or both, fails to request a
   3-24  formal hearing in a timely manner, the commissioner shall assess
   3-25  the penalty or enter a restitution order, or both.  The
   3-26  commissioner shall give the person written notice of the
   3-27  commissioner's action.  The person shall pay the required amounts
    4-1  not later than the 30th day after the date on which the person
    4-2  receives the notice.
    4-3        (l)  Except as provided by Subsection (m) of this section,
    4-4  not later than the 30th day after the date on which the
    4-5  commissioner issues a final decision after a hearing under
    4-6  Subsection (j) of this section, a person who has been ordered to
    4-7  pay a penalty or make restitution, or both, under this section
    4-8  shall pay the required amount in full.
    4-9        (m)  If the person seeks judicial review of either the fact
   4-10  of the occurrence of a violation or the amount ordered or of both
   4-11  the occurrence and the amount, the person shall send the required
   4-12  amount to the commissioner for placement in an escrow account or
   4-13  post with the commissioner a supersedeas bond in a form approved by
   4-14  the commissioner for the required amount.  The bond must be
   4-15  effective until all judicial review of the order or decision is
   4-16  final.
   4-17        (n)  Failure to forward the money to or to post the bond with
   4-18  the commissioner within the period provided by Subsection (l) or
   4-19  (m) of this section results in a waiver of all legal rights to
   4-20  judicial review.  If the person charged fails to forward the money
   4-21  or post the bond within the period provided by Subsection (h), (k),
   4-22  (l), or (m) of this section, the commissioner may forward the
   4-23  matter to the attorney general for enforcement of the penalty or
   4-24  restitution, or both, and interest as provided by law for legal
   4-25  judgments.  An action to enforce an order under this section must
   4-26  be initiated in a court of competent jurisdiction in Travis County
   4-27  or in the county in which the violation occurred.
    5-1        (o)  Judicial review of an order of the commissioner or
    5-2  review under this section assessing a penalty or ordering
    5-3  restitution, or both, is under the substantial evidence rule.  A
    5-4  suit may be initiated by filing a petition with a district court in
    5-5  Travis County, as provided by Section 19, Administrative Procedure
    5-6  and Texas Register Act (Article 6252-13a, Vernon's Texas Civil
    5-7  Statutes), and its subsequent amendments.
    5-8        (p)  If a penalty or restitution amount is reduced or not
    5-9  assessed, the commissioner shall remit to the person the
   5-10  appropriate amount plus accrued interest if the penalty or
   5-11  restitution amount has been paid or shall execute a release of the
   5-12  bond if a supersedeas bond has been posted.  The accrued interest
   5-13  on amounts remitted by the commissioner under this subsection shall
   5-14  be paid at a rate equal to the rate provided by law for legal
   5-15  judgments and shall be paid for the period beginning on the date
   5-16  the amount is paid to the commissioner under this section and
   5-17  ending on the date the amount is remitted.
   5-18        (q)  In addition to the administrative penalty or restitution
   5-19  amount, the court may authorize the commissioner to recover from a
   5-20  person who pays an administrative penalty or restitution amount, or
   5-21  both, under this section reasonable expenses incurred in obtaining
   5-22  the ordered amount, including investigation costs, witness fees,
   5-23  and deposition expenses.
   5-24        (r)  A penalty collected under this section shall be
   5-25  deposited to the credit of the general revenue fund.  After an
   5-26  order of restitution becomes final and the restitution amount is
   5-27  paid to the commissioner, the commissioner shall transmit the
    6-1  amount to the party entitled to it.
    6-2        SECTION 2.  Chapter IV, The Texas Banking Code (Article
    6-3  342-401 et seq., Vernon's Texas Civil Statutes), is amended by
    6-4  adding Article 12a to read as follows:
    6-5        Art. 12a.  ADMINISTRATIVE PENALTY; RESTITUTION ORDER.
    6-6  (a)  The Banking Commissioner may assess an administrative penalty
    6-7  against a person who knowingly and wilfully violates or causes a
    6-8  violation of a provision of this Code or a rule adopted under this
    6-9  Code that relates to a state bank, private bank, or trust company.
   6-10  The Banking Commissioner may order a person who knowingly and
   6-11  wilfully violates or causes a violation of this Code or a rule
   6-12  adopted under this Code that relates to a state bank, private bank,
   6-13  or trust company to make restitution to an identifiable person
   6-14  injured by the violation.
   6-15        (b)  The amount of the penalty may not exceed $25,000 for
   6-16  each day of violation and for each act of violation.
   6-17        (c)  In determining the amount of a penalty, the Banking
   6-18  Commissioner shall consider:
   6-19              (1)  the extent of actual or potential harm to a third
   6-20  party;
   6-21              (2)  the history of previous violations;
   6-22              (3)  the amount necessary to deter future violations;
   6-23              (4)  efforts to correct the violation;
   6-24              (5)  enforcement costs relating to the violation,
   6-25  including investigation costs, witness fees, and deposition
   6-26  expenses; and
   6-27              (6)  any other matters that justice may require.
    7-1        (d)  In determining the amount of restitution, the Banking
    7-2  Commissioner shall consider:
    7-3              (1)  the extent of actual harm to the third party in
    7-4  whose favor restitution is ordered; and
    7-5              (2)  any other matters that justice may require.
    7-6        (e)  If after an examination of the facts the Banking
    7-7  Commissioner  concludes that the person did commit or cause a
    7-8  violation, the Banking Commissioner may issue a preliminary report
    7-9  stating the facts on which the Banking Commissioner based that
   7-10  conclusion, recommending that an administrative penalty be imposed
   7-11  or a restitution order entered, or both, under this article,  and
   7-12  recommending the amount of the proposed penalty or restitution.
   7-13        (f)  The Banking Commissioner shall give written notice of
   7-14  the report to the person charged with committing or causing the
   7-15  violation.  The notice must include a brief summary of the facts, a
   7-16  statement of the amount of the recommended penalty or restitution,
   7-17  or both, and a statement of the person's right to an informal
   7-18  review of the occurrence of the violation, the amount of the
   7-19  penalty or restitution, or both the occurrence and the amount.
   7-20        (g)  Not later than the 10th day after the date on which the
   7-21  person charged with committing or causing the violation receives
   7-22  the notice, the person may either give the Banking Commissioner
   7-23  written consent to the report, including the recommended amounts,
   7-24  or make a written request for an informal review by the Banking
   7-25  Commissioner.
   7-26        (h)  If the person charged with committing or causing the
   7-27  violation consents to the amounts recommended by the Banking
    8-1  Commissioner or fails to timely request an informal review, the
    8-2  Banking Commissioner shall assess the penalty or enter the
    8-3  restitution order, or both.  The Banking Commissioner shall give
    8-4  the person written notice of the Banking Commissioner's action.
    8-5  The person shall pay the required amounts not later than the 30th
    8-6  day after the date on which the person receives the notice.
    8-7        (i)  If the person charged with committing or causing a
    8-8  violation requests an informal review as provided by Subsection (g)
    8-9  of this article, the Banking Commissioner shall conduct the review.
   8-10  The Banking Commissioner shall give the person written notice of
   8-11  the results of the review.
   8-12        (j)  Not later than the 10th day after the date on which the
   8-13  person charged with committing or causing the violation receives
   8-14  the notice prescribed by Subsection (i) of this article, the person
   8-15  may make to the Banking Commissioner a written request for a
   8-16  hearing.  The hearing must be conducted in accordance with the
   8-17  Administrative Procedure and Texas Register Act (Article 6252-13a,
   8-18  Vernon's Texas Civil Statutes) and its subsequent amendments.
   8-19        (k)  If after informal review a person who has been ordered
   8-20  to pay a penalty or make restitution, or both, fails to request a
   8-21  formal hearing in a timely manner, the Banking Commissioner shall
   8-22  assess the penalty or enter a restitution order, or both.  The
   8-23  Banking Commissioner shall give the person written notice of the
   8-24  Banking Commissioner's action.  The person shall pay the required
   8-25  amounts not later than the 30th day after the date on which the
   8-26  person receives the notice.
   8-27        (l)  Except as provided by Subsection (m) of this article,
    9-1  not later than the 30th day after the date on which the Banking
    9-2  Commissioner issues a final decision after a hearing under
    9-3  Subsection (j) of this article, a person who has been ordered to
    9-4  pay a penalty or make restitution, or both, under this article
    9-5  shall pay the required amount in full.
    9-6        (m)  If the person seeks judicial review of either the fact
    9-7  of the occurrence of a violation or the amount ordered or of both
    9-8  the occurrence and the amount, the person shall send the required
    9-9  amount to the Banking Commissioner for placement in an escrow
   9-10  account or post with the Banking Commissioner a supersedeas bond in
   9-11  a form approved by the Banking Commissioner for the required
   9-12  amount.  The bond must be effective until all judicial review of
   9-13  the order or decision is final.
   9-14        (n)  Failure to forward the money to or to post the bond with
   9-15  the Banking Commissioner within the period provided by Subsection
   9-16  (l) or (m) of this article results in a waiver of all legal rights
   9-17  to judicial review.  If the person charged fails to forward the
   9-18  money or post the bond within the period provided by Subsection
   9-19  (h), (k), (l), or (m) of this article, the Banking Commissioner may
   9-20  forward the matter to the attorney general for enforcement of the
   9-21  penalty or restitution, or both, and interest as provided by law
   9-22  for legal judgments.  An action to enforce an order under this
   9-23  article must be initiated in a court of competent jurisdiction in
   9-24  Travis County or in the county in which the violation occurred.
   9-25        (o)  Judicial review of an order of the Banking Commissioner
   9-26  or review under this article assessing a penalty or ordering
   9-27  restitution, or both, is under the substantial evidence rule.  A
   10-1  suit may be initiated by filing a petition with a district court in
   10-2  Travis County, as provided by Section 19, Administrative Procedure
   10-3  and Texas Register Act (Article 6252-13a, Vernon's Texas Civil
   10-4  Statutes).
   10-5        (p)  If a penalty or restitution amount is reduced or not
   10-6  assessed, the Banking Commissioner shall remit to the person the
   10-7  appropriate amount plus accrued interest if the penalty or
   10-8  restitution amount has been paid or shall execute a release of the
   10-9  bond if a supersedeas bond has been posted.  The accrued interest
  10-10  on amounts remitted by the Banking Commissioner under this
  10-11  subsection shall be paid at a rate equal to the rate provided by
  10-12  law for legal judgments and shall be paid for the period beginning
  10-13  on the date the amount is paid to the Banking Commissioner under
  10-14  this article and ending on the date the amount is remitted.
  10-15        (q)  In addition to the administrative penalty or restitution
  10-16  amount, the court may authorize the Banking Commissioner to recover
  10-17  from a person who pays an administrative penalty or restitution
  10-18  amount, or both, under this article reasonable expenses incurred in
  10-19  obtaining the ordered amount, including investigation costs,
  10-20  witness fees, and deposition expenses.
  10-21        (r)  A penalty collected under this article shall be
  10-22  deposited to the credit of the general revenue fund.  After an
  10-23  order of restitution becomes final and the restitution amount is
  10-24  paid to the Banking Commissioner, the Banking Commissioner shall
  10-25  transmit the amount to the party entitled to it.
  10-26        SECTION 3.  Subchapter C, Chapter 712, Health and Safety
  10-27  Code, is amended by adding Sections 712.049 and 712.050 to read as
   11-1  follows:
   11-2        Sec. 712.049.  ADMINISTRATIVE PENALTY; RESTITUTION ORDER.
   11-3  (a)  The commissioner may assess an administrative penalty against
   11-4  a person who knowingly and wilfully violates or causes a violation
   11-5  of this chapter or a rule adopted under this chapter.  The
   11-6  commissioner may order a person who knowingly and wilfully violates
   11-7  or causes a violation of this chapter or a rule adopted under this
   11-8  chapter to make restitution to an identifiable person injured by
   11-9  the violation.
  11-10        (b)  The amount of the penalty may not exceed $25,000 for
  11-11  each day of violation and for each act of violation.
  11-12        (c)  In determining the amount of a penalty, the commissioner
  11-13  shall consider:
  11-14              (1)  the extent of actual or potential harm to a third
  11-15  party;
  11-16              (2)  the history of previous violations;
  11-17              (3)  the amount necessary to deter future violations;
  11-18              (4)  efforts to correct the violation;
  11-19              (5)  enforcement costs relating to the violation,
  11-20  including investigation costs, witness fees, and deposition
  11-21  expenses; and
  11-22              (6)  any other matters that justice may require.
  11-23        (d)  In determining the amount of restitution, the
  11-24  commissioner shall consider:
  11-25              (1)  the extent of actual harm to the third party in
  11-26  whose favor restitution is ordered; and
  11-27              (2)  any other matters that justice may require.
   12-1        (e)  If after an examination of the facts the commissioner
   12-2  concludes that the person did commit or cause a violation, the
   12-3  commissioner may issue a preliminary report stating the facts on
   12-4  which the commissioner based that conclusion, recommending that an
   12-5  administrative penalty be imposed or a restitution order entered,
   12-6  or both, under this section, and recommending the amount of the
   12-7  proposed penalty or restitution.
   12-8        (f)  The commissioner shall give written notice of the report
   12-9  to the person charged with committing or causing the violation.
  12-10  The notice must include a brief summary of the facts, a statement
  12-11  of the amount of the recommended penalty or restitution, or both,
  12-12  and a statement of the person's right to an informal review of the
  12-13  occurrence of the violation, the amount of the penalty or
  12-14  restitution, or both the occurrence and the amount.
  12-15        (g)  Not later than the 10th day after the date on which the
  12-16  person charged with committing or causing the violation receives
  12-17  the notice, the person may either give the commissioner written
  12-18  consent to the report, including the recommended amounts, or make a
  12-19  written request for an informal review by the commissioner.
  12-20        (h)  If the person charged with committing or causing the
  12-21  violation consents to the amounts recommended by the commissioner
  12-22  or fails to timely request an informal review, the commissioner
  12-23  shall assess the penalty or enter a restitution order, or both.
  12-24  The commissioner shall give the person written notice of the
  12-25  commissioner's  action.  The person shall pay the required amounts
  12-26  not later than the 30th day after the date on which the person
  12-27  receives the notice.
   13-1        (i)  If the person charged with committing or causing a
   13-2  violation requests an informal review as provided by Subsection
   13-3  (g), the commissioner shall conduct the review.  The commissioner
   13-4  shall give the person written notice of the results of the review.
   13-5        (j)  Not later than the 10th day after the date on which the
   13-6  person charged with committing or causing the violation receives
   13-7  the notice prescribed by Subsection (i), the person may make to the
   13-8  commissioner a written request for a hearing.  The hearing must be
   13-9  conducted in accordance with the Administrative Procedure and Texas
  13-10  Register Act (Article 6252-13a, Vernon's Texas Civil Statutes).
  13-11        (k)  If after informal review a person who has been ordered
  13-12  to pay a penalty or make restitution, or both, fails to request a
  13-13  formal hearing in a timely manner, the commissioner shall assess
  13-14  the penalty or enter a restitution order, or both.  The
  13-15  commissioner shall give the person written notice of the
  13-16  commissioner's action.  The person shall pay the required amounts
  13-17  not later than the 30th day after the date on which the person
  13-18  receives the notice.
  13-19        (l)  Except as provided by Subsection (m), not later than the
  13-20  30th day after the date on which the commissioner issues a final
  13-21  decision after a hearing under Subsection (j), a person who has
  13-22  been ordered to pay a penalty or make restitution, or both, under
  13-23  this section shall pay the required amounts in full.
  13-24        (m)  If the person seeks judicial review of either the fact
  13-25  of the occurrence of a violation or the amount ordered or of both
  13-26  the occurrence and the amount, the person shall send the required
  13-27  amount to the commissioner for placement in an escrow account or
   14-1  post with the commissioner a supersedeas bond in a form approved by
   14-2  the commissioner for the required amount.  The bond must be
   14-3  effective until all judicial review of the order or decision is
   14-4  final.
   14-5        (n)  Failure to forward the money to or to post the bond with
   14-6  the commissioner within the period provided by Subsection (l) or
   14-7  (m) results in a waiver of all legal rights to judicial review.  If
   14-8  the person charged fails to forward the money or post the bond
   14-9  within the period provided by Subsection (h), (k), (l), or (m), the
  14-10  commissioner may forward the matter to the attorney general for
  14-11  enforcement of the penalty or restitution, or both, and interest as
  14-12  provided by law for legal judgments.  An action to enforce an order
  14-13  under this section must be initiated in a court of competent
  14-14  jurisdiction in Travis County or in the county in which the
  14-15  violation occurred.
  14-16        (o)  Judicial review of an order of the commissioner or
  14-17  review under this section assessing a penalty or ordering
  14-18  restitution, or both, is under the substantial  evidence rule.  A
  14-19  suit may be initiated by filing a petition with a district court in
  14-20  Travis County, as provided by Section 19, Administrative Procedure
  14-21  and Texas Register Act (Article 6252-13a, Vernon's Texas Civil
  14-22  Statutes).
  14-23        (p)  If a penalty or restitution amount is reduced or not
  14-24  assessed, the commissioner shall remit to the person the
  14-25  appropriate amount plus accrued interest if the penalty or
  14-26  restitution amount has been paid or shall execute a release of the
  14-27  bond if a supersedeas bond has been posted.  The accrued interest
   15-1  on amounts remitted by the commissioner under this subsection shall
   15-2  be paid at a rate equal to the rate provided by law for legal
   15-3  judgments and shall be paid for the period beginning on the date
   15-4  the amount is paid to the commissioner under this section and
   15-5  ending on the date the amount is remitted.
   15-6        (q)  In addition to the administrative penalty or restitution
   15-7  amount, the court may authorize the commissioner to recover from a
   15-8  person who pays an administrative penalty or restitution amount, or
   15-9  both, under this section reasonable expenses incurred in obtaining
  15-10  the ordered amount, including investigation costs, witness fees,
  15-11  and deposition expenses.
  15-12        (r)  A penalty collected under this section shall be
  15-13  deposited to the credit of the general revenue fund.  After an
  15-14  order of restitution becomes final and the restitution amount is
  15-15  paid to the commissioner, the commissioner shall transmit the
  15-16  amount to the party entitled to it.
  15-17        Sec. 712.050.  CEASE AND DESIST ORDERS.  (a)  The
  15-18  commissioner may send written notice of the commissioner's findings
  15-19  and meet with the directors of a cemetery corporation or its
  15-20  trustee to discuss the findings and demand a discontinuance of
  15-21  certain violations and practices if the commissioner determines
  15-22  that the cemetery corporation or trustee or a person acting on
  15-23  behalf of the cemetery corporation or trustee has:
  15-24              (1)  violated this chapter or a rule adopted under this
  15-25  chapter;
  15-26              (2)  committed a breach of trust or of a fiduciary
  15-27  duty;
   16-1              (3)  committed a fraudulent act or other practice in
   16-2  the conduct of the cemetery corporation's business that threatens
   16-3  the solvency of the cemetery corporation;
   16-4              (4)  refused to submit to an examination by the
   16-5  commissioner;
   16-6              (5)  conducted the cemetery corporation's business in
   16-7  an unsafe or unauthorized manner; or
   16-8              (6)  violated a condition of an agreement between the
   16-9  cemetery corporation or trustee and the commissioner.
  16-10        (b)  The notice required by Subsection (a) must be sent to
  16-11  the cemetery corporation or trustee and to the person acting on
  16-12  behalf of the cemetery corporation or trustee whose conduct
  16-13  constitutes the violation or practice.  The notice must contain a
  16-14  time for the meeting at the office of the commissioner concerning
  16-15  the findings.
  16-16        (c)  Not later than the 30th day after the date of the
  16-17  meeting, the commissioner may enter a cease and desist order or may
  16-18  order affirmative action to correct the violation or practice if
  16-19  the commissioner determines the order is necessary.  A copy of the
  16-20  order must be served on the cemetery corporation or trustee and on
  16-21  any other person named in the order.  An order takes effect on the
  16-22  date specified in the order, except that an order may not take
  16-23  effect before the 10th day after the date of its receipt by the
  16-24  cemetery corporation or trustee or other person named in the order
  16-25  unless the commissioner finds that immediate and irreparable harm
  16-26  is threatened to the purchasers or potential purchasers of plots in
  16-27  the cemetery or the general public.  The cemetery corporation or
   17-1  trustee shall certify to the commissioner in writing that each
   17-2  person named in the order and each member of the cemetery
   17-3  corporation's board of directors has read and understood the order.
   17-4        (d)  A cemetery corporation or trustee or other person named
   17-5  in the order may appeal the commissioner's order to the commission
   17-6  by filing a notice of appeal with the commission not later than the
   17-7  10th day after the date of receipt of notice of the order.
   17-8        (e)  On receipt of a timely notice of appeal, the commission
   17-9  shall set a time and place for hearing the appeal of the order and
  17-10  give reasonable notice of the hearing to the party filing the
  17-11  appeal.  Unless otherwise provided by this chapter, the hearing
  17-12  before the commission shall be conducted in accordance with the
  17-13  Administrative Procedure and Texas Register Act (Article 6252-13a,
  17-14  Vernon's Texas Civil Statutes).  If the commission finds that a
  17-15  party filing an appeal has committed one or more of the violations
  17-16  or practices charged by the commissioner and that the order is
  17-17  necessary, the commission shall affirm the order.  If the
  17-18  commission finds otherwise, the commission shall set aside the
  17-19  order.
  17-20        (f)  If a cemetery corporation or trustee or other person
  17-21  named in an order does not comply with a final and effective order
  17-22  entered under this section, the attorney general, if requested by
  17-23  the commissioner, may bring suit in a district court in Travis
  17-24  County against the cemetery corporation or trustee or other person
  17-25  to enjoin violation of the order.
  17-26        (g)  Nothing in this section diminishes the regulatory or
  17-27  enforcement powers of the commissioner or the commission under
   18-1  other provisions of this chapter or other applicable law.  The
   18-2  commissioner is not required to proceed under this section before
   18-3  taking regulatory action under any section of this subchapter or
   18-4  under any other applicable law.
   18-5        (h)  In this section, "commission" means The Finance
   18-6  Commission of Texas.
   18-7        SECTION 4.  Title 79, Revised Statutes (Article 5069-1.01 et
   18-8  seq., Vernon's Texas Civil Statutes), is amended by adding Article
   18-9  2.03A to read as follows:
  18-10        Art. 2.03A.  ADMINISTRATIVE PENALTY; RESTITUTION ORDER.
  18-11  (a)  The Consumer Credit Commissioner may assess an administrative
  18-12  penalty against a person who knowingly and wilfully violates or
  18-13  causes a violation of this subtitle, Chapter 9 or 15 of this title,
  18-14  or a rule adopted under this subtitle or Chapter 9 or 15 of this
  18-15  title.  The commissioner may order a person who knowingly and
  18-16  wilfully violates or causes a violation of this subtitle, Chapter 9
  18-17  or 15 of this title, or a rule adopted under this subtitle or
  18-18  Chapter 9 or 15 of this title to make restitution to an
  18-19  identifiable person injured by the violation.
  18-20        (b)  The amount of the penalty may not exceed $1,000 for each
  18-21  day of violation and for each act of violation.  The aggregate
  18-22  amount of penalties that may be assessed against a person during
  18-23  one calendar year under this Article may not exceed $5,000 for each
  18-24  business location at which an element of a violation occurred and
  18-25  may not exceed $50,000 if the person committed violations at 11 or
  18-26  more business locations.
  18-27        (c)  In determining the amount of a penalty, the commissioner
   19-1  shall consider:
   19-2              (1)  the seriousness of the violation, including the
   19-3  nature, circumstances, extent, and gravity of the prohibited act;
   19-4              (2)  the extent of actual or potential harm to a third
   19-5  party;
   19-6              (3)  the history of violations during the preceding
   19-7  four years;
   19-8              (4)  the amount necessary to deter future violations;
   19-9              (5)  efforts to correct the violation; and
  19-10              (6)  any other matter that justice may require.
  19-11        (d)  If after an examination of the facts the commissioner
  19-12  concludes that the person did commit a violation, the commissioner
  19-13  may issue a preliminary report stating the facts on which the
  19-14  commissioner based that conclusion, recommending that an
  19-15  administrative penalty be imposed or a restitution order entered,
  19-16  or both, under this Article, and recommending the amount of the
  19-17  proposed penalty or restitution.
  19-18        (e)  The commissioner shall give written notice of the report
  19-19  to the person charged with committing the violation.  The notice
  19-20  must include a brief summary of the facts, a statement of the
  19-21  amount of the recommended penalty or restitution, or both, and a
  19-22  statement of the person's right to an informal review of the
  19-23  occurrence of the violation, the amount of the penalty or
  19-24  restitution, or both the occurrence and the amount.
  19-25        (f)  Not later than the 10th day after the date on which the
  19-26  person charged with committing the violation receives the notice,
  19-27  the person may either give the commissioner written consent to the
   20-1  report, including the recommended amounts, or make a written
   20-2  request for an informal review by the commissioner.
   20-3        (g)  If the person charged with committing the violation
   20-4  consents to the amounts recommended by the commissioner or fails to
   20-5  timely request an informal review, the commissioner shall assess
   20-6  the penalty or enter the restitution order, or both.  The
   20-7  commissioner shall give the person written notice of the
   20-8  commissioner's action.  The person shall pay the required amounts
   20-9  not later than the 30th day after the date on which the person
  20-10  receives the notice.
  20-11        (h)  If the person charged with committing a violation
  20-12  requests an informal review as provided by Subsection (f) of this
  20-13  Article, the commissioner shall conduct the review.  The
  20-14  commissioner shall give the person written notice of the results of
  20-15  the review.
  20-16        (i)  Not later than the 10th day after the date on which the
  20-17  person charged with committing the violation receives the notice
  20-18  prescribed by Subsection (h) of this Article, the person may make
  20-19  to the commissioner a written request for a hearing.  The hearing
  20-20  must be conducted in accordance with the Administrative Procedure
  20-21  and Texas Register Act (Article 6252-13a, Vernon's Texas Civil
  20-22  Statutes).
  20-23        (j)  If after informal review a person who has been ordered
  20-24  to pay a penalty or make restitution, or both, fails to request a
  20-25  formal hearing in a timely manner, the commissioner shall assess
  20-26  the penalty or enter a restitution order, or both.  The
  20-27  commissioner shall give the person written notice of the
   21-1  commissioner's action.  The person shall pay the required amounts
   21-2  not later than the 30th day after the date on which the person
   21-3  receives the notice.
   21-4        (k)  Except as provided by Subsection (l) of this Article,
   21-5  not later than the 30th day after the date on which the
   21-6  commissioner issues a final decision after a hearing under
   21-7  Subsection (i) of this Article, a person who has been ordered to
   21-8  pay a penalty or make restitution, or both, under this Article
   21-9  shall pay the required amount in full.
  21-10        (l)  If the person seeks judicial review of either the fact
  21-11  of the occurrence of a violation or the amount ordered or of both
  21-12  the occurrence and the amount, the person shall send the required
  21-13  amount to the commissioner for placement in an escrow account or
  21-14  post with the commissioner a supersedeas bond in a form approved by
  21-15  the commissioner for the required amount.  The bond must be
  21-16  effective until all judicial review of the order or decision is
  21-17  final.
  21-18        (m)  Failure to forward the money to or to post the bond with
  21-19  the commissioner within the period provided by Subsection (k) or
  21-20  (l) of this Article results in a waiver of all legal rights to
  21-21  judicial review.  If the person charged fails to forward the money
  21-22  or post the bond within the period provided by Subsection (g), (j),
  21-23  (k), or (l) of this Article, the commissioner may forward the
  21-24  matter to the attorney general for enforcement of the penalty or
  21-25  restitution, or both, and interest as provided by law for legal
  21-26  judgments.  An action to enforce an order under this Article must
  21-27  be initiated in a court of competent jurisdiction in Travis County
   22-1  or in the county in which the violation occurred.
   22-2        (n)  Judicial review of an order of the commissioner or
   22-3  review under this Article assessing a penalty or ordering
   22-4  restitution, or both, is under the substantial evidence rule.  Suit
   22-5  may be initiated by filing a petition with a district court in
   22-6  Travis County, as provided by Section 19, Administrative Procedure
   22-7  and Texas Register Act (Article 6252-13a, Vernon's Texas Civil
   22-8  Statutes).
   22-9        (o)  If a penalty amount is reduced or not assessed, the
  22-10  commissioner shall remit to the person the appropriate amount plus
  22-11  accrued interest if the penalty or restitution amount has been paid
  22-12  or shall execute a release of the bond if a supersedeas bond has
  22-13  been posted.  The accrued interest on amounts remitted by the
  22-14  commissioner under this subsection shall be paid at a rate equal to
  22-15  the rate provided by law for legal judgments and shall be paid for
  22-16  the period beginning on the date the amount is paid to the
  22-17  commissioner under this Article and ending on the date the amount
  22-18  is remitted.
  22-19        (p)  In addition to the administrative penalty or restitution
  22-20  amount, the court may authorize the commissioner to recover from a
  22-21  person who pays an administrative penalty or restitution amount, or
  22-22  both, under this Article reasonable expenses incurred in obtaining
  22-23  the ordered amount, including investigation costs, witness fees,
  22-24  and deposition expenses.
  22-25        (q)  A penalty collected under this Article shall be
  22-26  deposited to the credit of the general revenue fund.
  22-27        (r)  An administrative penalty or restitution order
   23-1  authorized by this Article is in addition to any other enforcement
   23-2  authority provided by law.
   23-3        SECTION 5.  Section 3, The Securities Act (Article 581-3,
   23-4  Vernon's Texas Civil Statutes), is amended to read as follows:
   23-5        Sec. 3.  ADMINISTRATION AND ENFORCEMENT BY THE SECURITIES
   23-6  COMMISSIONER AND THE ATTORNEY GENERAL AND LOCAL LAW ENFORCEMENT
   23-7  OFFICIALS.  A.  The administration of the provisions of this Act
   23-8  shall be vested in the Securities Commissioner.  It shall be the
   23-9  duty of the Securities Commissioner and the Attorney General to see
  23-10  that its provisions are at all times obeyed and to take such
  23-11  measures and to make such investigations as will prevent or detect
  23-12  the violation of any provision thereof.  The Commissioner shall at
  23-13  once lay before the District or County Attorney of the proper
  23-14  county any evidence which shall come to his knowledge of
  23-15  criminality under this Act.  In the event of the neglect or refusal
  23-16  of such attorney to institute and prosecute such violation, the
  23-17  Commissioner shall submit such evidence to the Attorney General,
  23-18  who is hereby authorized to proceed therein with all the rights,
  23-19  privileges and powers conferred by law upon district or county
  23-20  attorneys, including the power to appear before grand juries and to
  23-21  interrogate witnesses before such grand juries.
  23-22        B.  The remedies provided by this Act are not exclusive, and
  23-23  the Securities Commissioner may seek and enforce as many of the
  23-24  remedies as the Commissioner considers necessary.
  23-25        SECTION 6.  Subsection A, Section 14, The Securities Act
  23-26  (Article 581-14, Vernon's Texas Civil Statutes), is amended to read
  23-27  as follows:
   24-1        A.  The Commissioner may deny, revoke, or suspend a
   24-2  registration, place on probation a dealer, agent, or salesman whose
   24-3  registration has been suspended, or reprimand a person registered
   24-4  under this Act if the person:
   24-5              (1)  has been convicted of a felony, or of any
   24-6  misdemeanor of which fraud is an essential element;
   24-7              (2)  has engaged in any inequitable practice in the
   24-8  sale of securities or in any fraudulent business practice;
   24-9              (3)  in the case of a dealer, is insolvent;
  24-10              (4)  in the case of a dealer, is selling or has sold
  24-11  securities in this state through a salesman other than a registered
  24-12  salesman, or, in the case of a salesman, is selling or has sold
  24-13  securities in this state for a dealer, issuer or controlling person
  24-14  with knowledge that such dealer, issuer or controlling person has
  24-15  not complied with the provisions of this Act;
  24-16              (5)  has violated any of the provisions of this Act or
  24-17  a rule of the Board;
  24-18              (6)  has made any material misrepresentation to the
  24-19  Commissioner or Board in connection with any information deemed
  24-20  necessary by the Commissioner or Board to determine a dealer's
  24-21  financial responsibility or a dealer's or salesman's business
  24-22  repute or qualifications, or has refused to furnish any such
  24-23  information requested by the Commissioner or Board; <or>
  24-24              (7)  has not complied with a condition imposed by the
  24-25  Commissioner under Section 13-D.  Provided, however, that this
  24-26  subdivision shall not apply to any person or company registered as
  24-27  a dealer or salesman on August 23, 1963; or
   25-1              (8)  has failed to pay an administrative penalty
   25-2  assessed under Section 35-3 of this Act.
   25-3        SECTION 7.  The Securities Act (Article 581-1 et seq.,
   25-4  Vernon's Texas Civil Statutes) is amended by adding Section 35-3 to
   25-5  read as follows:
   25-6        Sec. 35-3.  ADMINISTRATIVE PENALTIES.  A.  The commissioner
   25-7  may assess an administrative penalty against a person who violates
   25-8  or causes a violation of this Act or a rule adopted under this Act.
   25-9        B.  The amount of the penalty may not exceed $10,000 for each
  25-10  day of violation and for each act of violation.
  25-11        C.  In determining the amount of a penalty, the commissioner
  25-12  shall consider:
  25-13              (1)  the extent of actual or potential harm to a third
  25-14  party;
  25-15              (2)  the history of previous violations;
  25-16              (3)  the amount necessary to deter future violations;
  25-17              (4)  efforts to correct the violation;
  25-18              (5)  enforcement costs relating to the violation,
  25-19  including investigation costs, witness fees, and deposition
  25-20  expenses; and
  25-21              (6)  any other matters that justice may require.
  25-22        D.  If after an examination of the facts the commissioner
  25-23  concludes that the person did commit a violation, the commissioner
  25-24  may issue a preliminary report stating the facts on which the
  25-25  commissioner based that conclusion, recommending that an
  25-26  administrative penalty be imposed under this section, and
  25-27  recommending the amount of the proposed penalty.
   26-1        E.  The commissioner shall give written notice of the report
   26-2  to the person charged with committing the violation.  The notice
   26-3  must include a brief summary of the facts, a statement of the
   26-4  amount of the recommended penalty, a statement  of the person's
   26-5  right to an informal review of the occurrence of the violation, the
   26-6  amount of the penalty, or both the occurrence and the amount.
   26-7        F.  Not later than the 10th day after the date on which the
   26-8  person charged with committing the violation receives the notice,
   26-9  the person may either give the commissioner written consent to the
  26-10  report, including the recommended amounts, or make a written
  26-11  request for an informal review by the commissioner.
  26-12        G.  If the person charged with committing the violation
  26-13  consents to the amounts recommended by the commissioner or fails to
  26-14  timely request an informal review, the commissioner shall assess
  26-15  the penalty.  The commissioner shall give the person written notice
  26-16  of the commissioner's action.  The person shall pay the required
  26-17  amounts not later than the 30th day after the date on which the
  26-18  person receives the notice.
  26-19        H.  If the person charged with committing a violation
  26-20  requests an informal review as provided by Subsection F of this
  26-21  section, the commissioner shall conduct the review.  The
  26-22  commissioner shall give the person written notice of the results of
  26-23  the review.
  26-24        I.  Not later than the 10th day after the date on which the
  26-25  person charged with committing the violation receives the notice
  26-26  prescribed by Subsection H of this section, the person may make to
  26-27  the commissioner a written request for a hearing.  The hearing must
   27-1  be conducted in accordance with the Administrative Procedure and
   27-2  Texas Register Act (Article 6252-13a, Vernon's Texas Civil
   27-3  Statutes).
   27-4        J.  If after informal review a person who has been ordered to
   27-5  pay a penalty fails to request a formal hearing in a timely manner,
   27-6  the commissioner shall assess the penalty.  The commissioner shall
   27-7  give the person written notice of the commissioner's action.  The
   27-8  person shall pay the required amounts not later than the 30th day
   27-9  after the date on which the person receives the notice.
  27-10        K.  Except as provided by Subsection L of this section, not
  27-11  later than the 30th day after the date on which the commissioner
  27-12  issues a final decision after a hearing under Subsection I of this
  27-13  section, a person who has been ordered to pay a penalty under this
  27-14  section shall pay the required amount in full.
  27-15        L.  If the person seeks judicial review of either the fact of
  27-16  the occurrence of a violation or the amount ordered or of both the
  27-17  occurrence and the amount, the person shall send the required
  27-18  amount of the penalty to the commissioner for placement in an
  27-19  escrow account or post with the commissioner a supersedeas bond in
  27-20  a form approved by the commissioner for the required amount.  The
  27-21  bond must be effective until all judicial review of the order or
  27-22  decision is final.
  27-23        M.  Failure to forward the money to or to post the bond with
  27-24  the commissioner within the period provided by Subsection K or L of
  27-25  this section results in a waiver of all legal rights to judicial
  27-26  review.  If the person charged fails to forward the money or post
  27-27  the bond within the period provided by Subsection G, J, K, or L of
   28-1  this section, the commissioner may forward the matter to the
   28-2  attorney general for enforcement of the penalty and interest as
   28-3  provided by law for legal judgments.  An action to enforce an order
   28-4  under this section must be initiated in a court of competent
   28-5  jurisdiction in Travis County or in the county in which the
   28-6  violation occurred.
   28-7        N.  Judicial review of an order of the commissioner or review
   28-8  under this section assessing a penalty is under the substantial
   28-9  evidence rule.  A suit may be initiated by filing a petition with a
  28-10  district court in Travis County, as provided by Section 19,
  28-11  Administrative Procedure and Texas Register Act (Article 6252-13a,
  28-12  Vernon's Texas Civil Statutes).
  28-13        O.  If a penalty amount is reduced or not assessed, the
  28-14  commissioner shall remit to the person the appropriate amount plus
  28-15  accrued interest if the penalty amount has been paid or shall
  28-16  execute a release of the bond if a supersedeas bond has been
  28-17  posted.  The accrued interest on amounts remitted by the
  28-18  commissioner under this subsection shall be paid at a rate equal to
  28-19  the rate provided by law for legal judgments and shall be paid for
  28-20  the period beginning on the date the amount is paid to the
  28-21  commissioner under this section and ending on the date the amount
  28-22  is remitted.
  28-23        P.  In addition to the administrative penalty, the court may
  28-24  authorize the commissioner to recover from a person who pays an
  28-25  administrative penalty under this section reasonable expenses
  28-26  incurred in obtaining the ordered amount, including investigation
  28-27  costs, witness fees, and deposition expenses.
   29-1        Q.  A penalty collected under this section shall be deposited
   29-2  to the credit of the general revenue fund.
   29-3        SECTION 8.  This Act takes effect September 1, 1993.
   29-4        SECTION 9.  The administrative penalties, restitution orders,
   29-5  and cease and desist orders provided by this Act apply only to
   29-6  violations committed on or after the effective date of this Act.
   29-7  For purposes of this section, a violation is committed on or after
   29-8  the effective date of this Act if each element of the violation
   29-9  occurs on or after that date.
  29-10        SECTION 10.  The importance of this legislation and the
  29-11  crowded condition of the calendars in both houses create an
  29-12  emergency and an imperative public necessity that the
  29-13  constitutional rule requiring bills to be read on three several
  29-14  days in each house be suspended, and this rule is hereby suspended.