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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