By: Armbrister S.B. No. 562
73R932 KLL-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to civil, criminal, and administrative penalties under the
1-3 Texas Food, Drug, Device, and Cosmetic Salvage Act.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Chapter 432, Health and Safety Code, is amended
1-6 by amending Sections 432.018 and 432.019 and adding Sections
1-7 432.020 through 432.025 to read as follows:
1-8 Sec. 432.018. CIVIL PENALTY; INJUNCTION. (a) If it appears
1-9 that a person has violated, is violating, or is threatening to
1-10 violate this chapter or a rule adopted or order issued under this
1-11 chapter, the commissioner may request the attorney general or a
1-12 district, county, or municipal attorney of the municipality or
1-13 county in which the violation has occurred, is occurring, or may
1-14 occur to institute a civil suit for:
1-15 (1) an order enjoining the act or an order directing
1-16 compliance;
1-17 (2) a permanent or temporary injunction, restraining
1-18 order, or other appropriate order if the department shows that the
1-19 person is engaged in or is about to engage in any of the acts;
1-20 (3) the assessment and recovery of a civil penalty; or
1-21 (4) both the injunctive relief and civil penalty.
1-22 (b) The penalty may be in an amount not to exceed $25,000
1-23 for each violation. Each day a violation continues is a separate
1-24 violation.
2-1 (c) In determining the amount of the penalty, the court
2-2 shall consider:
2-3 (1) the person's history of previous violations;
2-4 (2) the seriousness of the violation;
2-5 (3) any hazard to the health and safety of the public;
2-6 (4) the demonstrated good faith of the person charged;
2-7 and
2-8 (5) other matters as justice may require.
2-9 (d) Venue for a suit brought under this section is in the
2-10 municipality or county in which the violation occurred or in Travis
2-11 County.
2-12 (e) A civil penalty recovered in a suit instituted by a
2-13 local government under this chapter shall be paid to the local
2-14 government.
2-15 (f) The commissioner and the attorney general may each
2-16 recover reasonable expenses incurred in obtaining injunctive
2-17 relief, civil penalties, or both under this section, including
2-18 investigative costs, court costs, reasonable attorney's fees,
2-19 witness fees, and deposition expenses <If a person violates this
2-20 chapter or a rule or order adopted or license issued under this
2-21 chapter, the commissioner may assess a civil penalty against that
2-22 person as provided by Chapter 431 (Texas Food, Drug, and Cosmetic
2-23 Act)>.
2-24 Sec. 432.019. Criminal Penalty. (a) A person commits an
2-25 offense if the person:
2-26 (1) operates a salvage establishment or acts as a
2-27 salvage broker without a license issued under this chapter; or
3-1 (2) fails to comply with a rule adopted under Section
3-2 432.011.
3-3 (b) An offense under this section is a Class A misdemeanor.
3-4 Sec. 432.020. EMERGENCY ORDER. (a) The commissioner or the
3-5 commissioner's designee may issue an emergency order, either
3-6 mandatory or prohibitory, concerning the sale or distribution of
3-7 distressed foods, drugs, devices, or cosmetics in the department's
3-8 jurisdiction if the commissioner or the commissioner's designee
3-9 determines that:
3-10 (1) the sale or distribution of those foods, drugs,
3-11 devices, or cosmetics creates or poses an immediate and serious
3-12 threat to human life or health; and
3-13 (2) other procedures available to the department to
3-14 remedy or prevent the occurrence of the situation will result in
3-15 unreasonable delay.
3-16 (b) The commissioner or the commissioner's designee may
3-17 issue the emergency order without notice and hearing if the
3-18 commissioner or the commissioner's designee determines it is
3-19 necessary under the circumstances.
3-20 (c) If an emergency order is issued without a hearing, the
3-21 department, not later than the 30th day after the date on which the
3-22 emergency order is issued, shall determine a time and place for a
3-23 hearing at which the emergency order will be affirmed, modified, or
3-24 set aside. The hearing shall be held under departmental formal
3-25 hearing rules.
3-26 Sec. 432.021. ADMINISTRATIVE PENALTY. (a) The commissioner
3-27 may assess an administrative penalty against a person who violates
4-1 a rule adopted under Section 432.011 or an order adopted or license
4-2 issued under this chapter.
4-3 (b) In determining the amount of the penalty, the
4-4 commissioner shall consider:
4-5 (1) the person's previous violations;
4-6 (2) the seriousness of the violation;
4-7 (3) any hazard to the health and safety of the public;
4-8 (4) the person's demonstrated good faith; and
4-9 (5) other matters as justice may require.
4-10 (c) The penalty may not exceed $25,000 for each violation.
4-11 Each day a violation continues is a separate violation.
4-12 Sec. 432.022. ADMINISTRATIVE PENALTY ASSESSMENT PROCEDURE.
4-13 (a) An administrative penalty may be assessed only after a person
4-14 charged with a violation is given an opportunity for a hearing.
4-15 (b) If a hearing is held, the commissioner shall make
4-16 findings of fact and shall issue a written decision regarding the
4-17 occurrence of the violation and the amount of the penalty.
4-18 (c) If the person charged with the violation does not
4-19 request a hearing, the commissioner may assess a penalty after
4-20 determining that a violation has occurred and the amount of the
4-21 penalty.
4-22 (d) After making a determination under this section that a
4-23 penalty is to be assessed, the commissioner shall issue an order
4-24 requiring that the person pay the penalty.
4-25 (e) The commissioner may consolidate a hearing held under
4-26 this section with another proceeding.
4-27 Sec. 432.023. PAYMENT OF ADMINISTRATIVE PENALTY. (a) Not
5-1 later than the 30th day after the date of issuance of an order
5-2 finding that a violation has occurred, the commissioner shall
5-3 inform the person against whom the order is issued of the amount of
5-4 the penalty.
5-5 (b) Not later than the 30th day after the date on which a
5-6 decision or order charging a person with a penalty is final, the
5-7 person shall:
5-8 (1) pay the penalty in full; or
5-9 (2) if the person seeks judicial review of the amount
5-10 of the penalty, the fact of the violation, or both:
5-11 (A) send the amount of the penalty to the
5-12 commissioner for placement in an escrow account; or
5-13 (B) post with the commissioner a bond for the
5-14 amount of the penalty.
5-15 (c) A bond posted under this section must be in a form
5-16 approved by the commissioner and be effective until all judicial
5-17 review of the order or decision is final.
5-18 (d) A person who does not send money to the commissioner or
5-19 post the bond within the period prescribed by Subsection (b) waives
5-20 all rights to contest the violation or the amount of the penalty.
5-21 Sec. 432.024. REFUND OF ADMINISTRATIVE PENALTY. Not later
5-22 than the 30th day after the date of a judicial determination that
5-23 an administrative penalty against a person should be reduced or not
5-24 assessed, the commissioner shall:
5-25 (1) remit to the person the appropriate amount of any
5-26 penalty payment plus accrued interest; or
5-27 (2) execute a release of the bond if the person has
6-1 posted a bond.
6-2 Sec. 432.025. RECOVERY OF ADMINISTRATIVE PENALTY BY ATTORNEY
6-3 GENERAL. The attorney general, at the request of the commissioner,
6-4 may bring a civil action to recover an administrative penalty under
6-5 this chapter.
6-6 SECTION 2. This Act takes effect September 1, 1993.
6-7 SECTION 3. The importance of this legislation and the
6-8 crowded condition of the calendars in both houses create an
6-9 emergency and an imperative public necessity that the
6-10 constitutional rule requiring bills to be read on three several
6-11 days in each house be suspended, and this rule is hereby suspended.