S.B. No. 562
                                        AN ACT
    1-1  relating to civil, criminal, and administrative penalties under the
    1-2  Texas Food, Drug, Device, and Cosmetic Salvage Act.
    1-3        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-4        SECTION 1.  Chapter 432, Health and Safety Code, is amended
    1-5  by amending Sections 432.018 and 432.019 and adding Sections
    1-6  432.020 through 432.025 to read as follows:
    1-7        Sec. 432.018.  CIVIL PENALTY; INJUNCTION.  (a)  If it appears
    1-8  that a person has violated, is violating, or is threatening to
    1-9  violate this chapter or a rule adopted or order issued under this
   1-10  chapter, the commissioner may request the attorney general or a
   1-11  district, county, or municipal attorney of the municipality or
   1-12  county in which the violation has occurred, is occurring, or may
   1-13  occur to institute a civil suit for:
   1-14              (1)  an order enjoining the act or an order directing
   1-15  compliance;
   1-16              (2)  a permanent or temporary injunction, restraining
   1-17  order, or other appropriate order if the department shows that the
   1-18  person is engaged in or is about to engage in any of the acts;
   1-19              (3)  the assessment and recovery of a civil penalty; or
   1-20              (4)  both the injunctive relief and civil penalty.
   1-21        (b)  The penalty may be in an amount not to exceed $25,000
   1-22  for each violation.  Each day a violation continues is a separate
   1-23  violation.
   1-24        (c)  In determining the amount of the penalty, the court
    2-1  shall consider:
    2-2              (1)  the person's history of previous violations;
    2-3              (2)  the seriousness of the violation;
    2-4              (3)  any hazard to the health and safety of the public;
    2-5              (4)  the demonstrated good faith of the person charged;
    2-6  and
    2-7              (5)  other matters as justice may require.
    2-8        (d)  Venue for a suit brought under this section is in the
    2-9  municipality or county in which the violation occurred or in Travis
   2-10  County.
   2-11        (e)  A civil penalty recovered in a suit instituted by a
   2-12  local government under this chapter shall be paid to the local
   2-13  government.
   2-14        (f)  The commissioner and the attorney general may each
   2-15  recover reasonable expenses incurred in obtaining injunctive
   2-16  relief, civil penalties, or both under this section, including
   2-17  investigative costs, court costs, reasonable attorney fees, witness
   2-18  fees, and deposition expenses <If a person violates this chapter or
   2-19  a rule or order adopted or license issued under this chapter, the
   2-20  commissioner may assess a civil penalty against that person as
   2-21  provided by Chapter 431 (Texas Food, Drug, and Cosmetic Act)>.
   2-22        Sec. 432.019.  Criminal Penalty.  (a)  A person commits an
   2-23  offense if the person:
   2-24              (1)  operates a salvage establishment or acts as a
   2-25  salvage broker without a license issued under this chapter; or
   2-26              (2)  fails to comply with a rule adopted under Section
   2-27  432.011.
    3-1        (b)  An offense under this section is a Class A misdemeanor.
    3-2        Sec. 432.020.  EMERGENCY ORDER.  (a)  The commissioner or the
    3-3  commissioner's designee may issue an emergency order, either
    3-4  mandatory or prohibitory, concerning the sale or distribution of
    3-5  distressed foods, drugs, devices, or cosmetics in the department's
    3-6  jurisdiction if the commissioner or the commissioner's designee
    3-7  determines that:
    3-8              (1)  the sale or distribution of those foods, drugs,
    3-9  devices, or cosmetics creates or poses an immediate and serious
   3-10  threat to human life or health; and
   3-11              (2)  other procedures available to the department to
   3-12  remedy or prevent the occurrence of the situation will result in
   3-13  unreasonable delay.
   3-14        (b)  The commissioner or the commissioner's designee may
   3-15  issue the emergency order without notice and hearing if the
   3-16  commissioner or the commissioner's designee determines it is
   3-17  necessary under the circumstances.
   3-18        (c)  If an emergency order is issued without a hearing, the
   3-19  department, not later than the 30th day after the date on which the
   3-20  emergency order is issued, shall determine a time and place for a
   3-21  hearing at which the emergency order will be affirmed, modified, or
   3-22  set aside.  The hearing shall be held under departmental formal
   3-23  hearing rules.
   3-24        Sec. 432.021.  ADMINISTRATIVE PENALTY.  (a)  The commissioner
   3-25  may assess an administrative penalty against a person who violates
   3-26  a rule adopted under Section 432.011 or an order adopted or license
   3-27  issued under this chapter.
    4-1        (b)  In determining the amount of the penalty, the
    4-2  commissioner shall consider:
    4-3              (1)  the person's previous violations;
    4-4              (2)  the seriousness of the violation;
    4-5              (3)  any hazard to the health and safety of the public;
    4-6              (4)  the person's demonstrated good faith; and
    4-7              (5)  other matters as justice may require.
    4-8        (c)  The penalty may not exceed $25,000 for each violation.
    4-9  Each day a violation continues is a separate violation.
   4-10        Sec. 432.022.  ADMINISTRATIVE PENALTY ASSESSMENT PROCEDURE.
   4-11  (a)  An administrative penalty may be assessed only after a person
   4-12  charged with a violation is given an opportunity for a hearing.
   4-13        (b)  If a hearing is held, the commissioner shall make
   4-14  findings of fact and shall issue a written decision regarding the
   4-15  occurrence of the violation and the amount of the penalty.
   4-16        (c)  If the person charged with the violation does not
   4-17  request a hearing, the commissioner may assess a penalty after
   4-18  determining that a violation has occurred and the amount of the
   4-19  penalty.
   4-20        (d)  After making a determination under this section that a
   4-21  penalty is to be assessed, the commissioner shall issue an order
   4-22  requiring that the person pay the penalty.
   4-23        (e)  The commissioner may consolidate a hearing held under
   4-24  this section with another proceeding.
   4-25        Sec. 432.023.  PAYMENT OF ADMINISTRATIVE PENALTY.  (a)  Not
   4-26  later than the 30th day after the date of issuance of an order
   4-27  finding that a violation has occurred, the commissioner shall
    5-1  inform the person against whom the order is issued of the amount of
    5-2  the penalty.
    5-3        (b)  Not later than the 30th day after the date on which a
    5-4  decision or order charging a person with a penalty is final, the
    5-5  person shall:
    5-6              (1)  pay the penalty in full; or
    5-7              (2)  if the person seeks judicial review of the amount
    5-8  of the penalty, the fact of the violation, or both:
    5-9                    (A)  send the amount of the penalty to the
   5-10  commissioner for placement in an escrow account; or
   5-11                    (B)  post with the commissioner a bond for the
   5-12  amount of the penalty.
   5-13        (c)  A bond posted under this section must be in a form
   5-14  approved by the commissioner and be effective until all judicial
   5-15  review of the order or decision is final.
   5-16        (d)  A person who does not send money to the commissioner or
   5-17  post the bond within the period prescribed by Subsection (b) waives
   5-18  all rights to contest the violation or the amount of the penalty.
   5-19        Sec. 432.024.  REFUND OF ADMINISTRATIVE PENALTY.  Not later
   5-20  than the 30th day after the date of a judicial determination that
   5-21  an administrative penalty against a person should be reduced or not
   5-22  assessed, the commissioner shall:
   5-23              (1)  remit to the person the appropriate amount of any
   5-24  penalty payment plus accrued interest; or
   5-25              (2)  execute a release of the bond if the person has
   5-26  posted a bond.
   5-27        Sec. 432.025.  RECOVERY OF ADMINISTRATIVE PENALTY BY ATTORNEY
    6-1  GENERAL.  The attorney general, at the request of the commissioner,
    6-2  may bring a civil action to recover an administrative penalty under
    6-3  this chapter.
    6-4        SECTION 2.  This Act takes effect September 1, 1993.
    6-5        SECTION 3.  The importance of this legislation and the
    6-6  crowded condition of the calendars in both houses create an
    6-7  emergency   and   an   imperative   public   necessity   that   the
    6-8  constitutional rule requiring bills to be read on three several
    6-9  days in each house be suspended, and this rule is hereby suspended.