1-1  By:  Armbrister                                        S.B. No. 562
    1-2        (In the Senate - Filed March 2, 1993; March 3, 1993, read
    1-3  first time and referred to Committee on Health and Human Services;
    1-4  April 6, 1993, reported favorably by the following vote:  Yeas 9,
    1-5  Nays 0; April 6, 1993, sent to printer.)
    1-6                            COMMITTEE VOTE
    1-7                          Yea     Nay      PNV      Absent 
    1-8        Zaffirini          x                               
    1-9        Ellis              x                               
   1-10        Madla              x                               
   1-11        Moncrief           x                               
   1-12        Nelson             x                               
   1-13        Patterson          x                               
   1-14        Shelley            x                               
   1-15        Truan              x                               
   1-16        Wentworth          x                               
   1-17                         A BILL TO BE ENTITLED
   1-18                                AN ACT
   1-19  relating to civil, criminal, and administrative penalties under the
   1-20  Texas Food, Drug, Device, and Cosmetic Salvage Act.
   1-21        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
   1-22        SECTION 1.  Chapter 432, Health and Safety Code, is amended
   1-23  by amending Sections 432.018 and 432.019 and adding Sections
   1-24  432.020 through 432.025 to read as follows:
   1-25        Sec. 432.018.  CIVIL PENALTY; INJUNCTION.  (a)  If it appears
   1-26  that a person has violated, is violating, or is threatening to
   1-27  violate this chapter or a rule adopted or order issued under this
   1-28  chapter, the commissioner may request the attorney general or a
   1-29  district, county, or municipal attorney of the municipality or
   1-30  county in which the violation has occurred, is occurring, or may
   1-31  occur to institute a civil suit for:
   1-32              (1)  an order enjoining the act or an order directing
   1-33  compliance;
   1-34              (2)  a permanent or temporary injunction, restraining
   1-35  order, or other appropriate order if the department shows that the
   1-36  person is engaged in or is about to engage in any of the acts;
   1-37              (3)  the assessment and recovery of a civil penalty; or
   1-38              (4)  both the injunctive relief and civil penalty.
   1-39        (b)  The penalty may be in an amount not to exceed $25,000
   1-40  for each violation.  Each day a violation continues is a separate
   1-41  violation.
   1-42        (c)  In determining the amount of the penalty, the court
   1-43  shall consider:
   1-44              (1)  the person's history of previous violations;
   1-45              (2)  the seriousness of the violation;
   1-46              (3)  any hazard to the health and safety of the public;
   1-47              (4)  the demonstrated good faith of the person charged;
   1-48  and
   1-49              (5)  other matters as justice may require.
   1-50        (d)  Venue for a suit brought under this section is in the
   1-51  municipality or county in which the violation occurred or in Travis
   1-52  County.
   1-53        (e)  A civil penalty recovered in a suit instituted by a
   1-54  local government under this chapter shall be paid to the local
   1-55  government.
   1-56        (f)  The commissioner and the attorney general may each
   1-57  recover reasonable expenses incurred in obtaining injunctive
   1-58  relief, civil penalties, or both under this section, including
   1-59  investigative costs, court costs, reasonable attorney fees, witness
   1-60  fees, and deposition expenses <If a person violates this chapter or
   1-61  a rule or order adopted or license issued under this chapter, the
   1-62  commissioner may assess a civil penalty against that person as
   1-63  provided by Chapter 431 (Texas Food, Drug, and Cosmetic Act)>.
   1-64        Sec. 432.019.  Criminal Penalty.  (a)  A person commits an
   1-65  offense if the person:
   1-66              (1)  operates a salvage establishment or acts as a
   1-67  salvage broker without a license issued under this chapter; or
   1-68              (2)  fails to comply with a rule adopted under Section
    2-1  432.011.
    2-2        (b)  An offense under this section is a Class A misdemeanor.
    2-3        Sec. 432.020.  EMERGENCY ORDER.  (a)  The commissioner or the
    2-4  commissioner's designee may issue an emergency order, either
    2-5  mandatory or prohibitory, concerning the sale or distribution of
    2-6  distressed foods, drugs, devices, or cosmetics in the department's
    2-7  jurisdiction if the commissioner or the commissioner's designee
    2-8  determines that:
    2-9              (1)  the sale or distribution of those foods, drugs,
   2-10  devices, or cosmetics creates or poses an immediate and serious
   2-11  threat to human life or health; and
   2-12              (2)  other procedures available to the department to
   2-13  remedy or prevent the occurrence of the situation will result in
   2-14  unreasonable delay.
   2-15        (b)  The commissioner or the commissioner's designee may
   2-16  issue the emergency order without notice and hearing if the
   2-17  commissioner or the commissioner's designee determines it is
   2-18  necessary under the circumstances.
   2-19        (c)  If an emergency order is issued without a hearing, the
   2-20  department, not later than the 30th day after the date on which the
   2-21  emergency order is issued, shall determine a time and place for a
   2-22  hearing at which the emergency order will be affirmed, modified, or
   2-23  set aside.  The hearing shall be held under departmental formal
   2-24  hearing rules.
   2-25        Sec. 432.021.  ADMINISTRATIVE PENALTY.  (a)  The commissioner
   2-26  may assess an administrative penalty against a person who violates
   2-27  a rule adopted under Section 432.011 or an order adopted or license
   2-28  issued under this chapter.
   2-29        (b)  In determining the amount of the penalty, the
   2-30  commissioner shall consider:
   2-31              (1)  the person's previous violations;
   2-32              (2)  the seriousness of the violation;
   2-33              (3)  any hazard to the health and safety of the public;
   2-34              (4)  the person's demonstrated good faith; and
   2-35              (5)  other matters as justice may require.
   2-36        (c)  The penalty may not exceed $25,000 for each violation.
   2-37  Each day a violation continues is a separate violation.
   2-38        Sec. 432.022.  ADMINISTRATIVE PENALTY ASSESSMENT PROCEDURE.
   2-39  (a)  An administrative penalty may be assessed only after a person
   2-40  charged with a violation is given an opportunity for a hearing.
   2-41        (b)  If a hearing is held, the commissioner shall make
   2-42  findings of fact and shall issue a written decision regarding the
   2-43  occurrence of the violation and the amount of the penalty.
   2-44        (c)  If the person charged with the violation does not
   2-45  request a hearing, the commissioner may assess a penalty after
   2-46  determining that a violation has occurred and the amount of the
   2-47  penalty.
   2-48        (d)  After making a determination under this section that a
   2-49  penalty is to be assessed, the commissioner shall issue an order
   2-50  requiring that the person pay the penalty.
   2-51        (e)  The commissioner may consolidate a hearing held under
   2-52  this section with another proceeding.
   2-53        Sec. 432.023.  PAYMENT OF ADMINISTRATIVE PENALTY.  (a)  Not
   2-54  later than the 30th day after the date of issuance of an order
   2-55  finding that a violation has occurred, the commissioner shall
   2-56  inform the person against whom the order is issued of the amount of
   2-57  the penalty.
   2-58        (b)  Not later than the 30th day after the date on which a
   2-59  decision or order charging a person with a penalty is final, the
   2-60  person shall:
   2-61              (1)  pay the penalty in full; or
   2-62              (2)  if the person seeks judicial review of the amount
   2-63  of the penalty, the fact of the violation, or both:
   2-64                    (A)  send the amount of the penalty to the
   2-65  commissioner for placement in an escrow account; or
   2-66                    (B)  post with the commissioner a bond for the
   2-67  amount of the penalty.
   2-68        (c)  A bond posted under this section must be in a form
   2-69  approved by the commissioner and be effective until all judicial
   2-70  review of the order or decision is final.
    3-1        (d)  A person who does not send money to the commissioner or
    3-2  post the bond within the period prescribed by Subsection (b) waives
    3-3  all rights to contest the violation or the amount of the penalty.
    3-4        Sec. 432.024.  REFUND OF ADMINISTRATIVE PENALTY.  Not later
    3-5  than the 30th day after the date of a judicial determination that
    3-6  an administrative penalty against a person should be reduced or not
    3-7  assessed, the commissioner shall:
    3-8              (1)  remit to the person the appropriate amount of any
    3-9  penalty payment plus accrued interest; or
   3-10              (2)  execute a release of the bond if the person has
   3-11  posted a bond.
   3-12        Sec. 432.025.  RECOVERY OF ADMINISTRATIVE PENALTY BY ATTORNEY
   3-13  GENERAL.  The attorney general, at the request of the commissioner,
   3-14  may bring a civil action to recover an administrative penalty under
   3-15  this chapter.
   3-16        SECTION 2.  This Act takes effect September 1, 1993.
   3-17        SECTION 3.  The importance of this legislation and the
   3-18  crowded condition of the calendars in both houses create an
   3-19  emergency   and   an   imperative   public   necessity   that   the
   3-20  constitutional rule requiring bills to be read on three several
   3-21  days in each house be suspended, and this rule is hereby suspended.
   3-22                               * * * * *
   3-23                                                         Austin,
   3-24  Texas
   3-25                                                         April 6, 1993
   3-26  Hon. Bob Bullock
   3-27  President of the Senate
   3-28  Sir:
   3-29  We, your Committee on Health and Human Services to which was
   3-30  referred S.B. No. 562, have had the same under consideration, and I
   3-31  am instructed to report it back to the Senate with the
   3-32  recommendation that it do pass and be printed.
   3-33                                                         Zaffirini,
   3-34  Chair
   3-35                               * * * * *
   3-36                               WITNESSES
   3-37                                                  FOR   AGAINST  ON
   3-38  ___________________________________________________________________
   3-39  Name:  Dennis E. Baker                                         x
   3-40  Representing:  Tx Dept of Health
   3-41  City:  Austin
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