By: Ellis S.B. No. 939
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the employment of children; providing criminal and
1-2 administrative penalties.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Section 12, Chapter 531, Acts of the 67th
1-5 Legislature, Regular Session, 1981 (Article 5181.1, Vernon's Texas
1-6 Civil Statutes), is amended to read as follows:
1-7 Sec. 12. PENALTY. An offense under this Act is a Class A
1-8 <C> misdemeanor.
1-9 SECTION 2. Chapter 531, Acts of the 67th Legislature,
1-10 Regular Session, 1981 (Article 5181.1, Vernon's Texas Civil
1-11 Statutes), is amended by adding Sections 13 and 14 to read as
1-12 follows:
1-13 Sec. 13. ADMINISTRATIVE PENALTY. (a) If the commission
1-14 determines that a person who employs a child has violated this Act
1-15 or a rule adopted under this Act, the commission may assess an
1-16 administrative penalty against that person as provided by this
1-17 section.
1-18 (b) The penalty for a violation may be in an amount not to
1-19 exceed $10,000.
1-20 (c) The amount of the penalty shall be based on:
1-21 (1) the seriousness of the violation, including the
1-22 nature, circumstances, extent, and gravity of any prohibited acts;
1-23 (2) the history of previous violations;
1-24 (3) the amount necessary to deter future violations;
2-1 (4) efforts to correct the violation; and
2-2 (5) any other matter that justice may require.
2-3 (d) If, after examination of a possible violation and the
2-4 facts relating to that possible violation, the commission
2-5 determines that a violation has occurred, the commission shall
2-6 issue a preliminary determination that states the facts on which
2-7 the determination is based, the fact that an administrative penalty
2-8 is to be imposed, and the amount of the penalty.
2-9 (e) Not later than the 14th day after the date the report is
2-10 issued, the commission shall give written notice of the preliminary
2-11 determination to the person charged with the violation. The notice
2-12 must include a brief summary of the alleged violation and a
2-13 statement of the amount of the recommended penalty and must inform
2-14 the person that the person has a right to a hearing on the
2-15 occurrence of the violation, the amount of the penalty, or both the
2-16 occurrence of the violation and the amount of the penalty.
2-17 (f) Not later than the 20th day after the date on which the
2-18 notice is mailed, the person may make a written request for a
2-19 hearing on the occurrence of the violation, the amount of the
2-20 penalty, or both the occurrence of the violation and the amount of
2-21 the penalty.
2-22 (g) If the person requests a hearing, the commission shall
2-23 set a hearing and give notice of the hearing to the person. The
2-24 hearing is subject to the commission rules and hearings procedures
2-25 used by the commission to determine a claim under the Texas
2-26 Unemployment Compensation Act (Article 5221b-1 et seq., Vernon's
2-27 Texas Civil Statutes) and its subsequent amendments. The hearings
3-1 examiner shall issue a decision.
3-2 (h) If it is determined after the hearing that a penalty may
3-3 be imposed, the commission shall enter a written order to that
3-4 effect. The commission shall notify the person in writing of the
3-5 decision and the amount of the penalty imposed.
3-6 (i) The notice of the commission's order must include a
3-7 statement of the right of the person to judicial review of the
3-8 order.
3-9 (j) Not later than the 30th day after the date the
3-10 commission's order is final, the person shall:
3-11 (1) pay the amount of the penalty;
3-12 (2) pay the amount of the penalty and file a petition
3-13 for judicial review contesting the occurrence of the violation, the
3-14 amount of the penalty, or both the occurrence of the violation and
3-15 the amount of the penalty; or
3-16 (3) without paying the amount of the penalty, file a
3-17 petition for judicial review contesting the occurrence of the
3-18 violation, the amount of the penalty, or both the occurrence of the
3-19 violation and the amount of the penalty.
3-20 (k) Within the 30-day period, a person who acts under
3-21 Subsection (j)(3) of this section may:
3-22 (1) stay enforcement of the penalty by:
3-23 (A) paying the amount of the penalty to the
3-24 court for placement in an escrow account; or
3-25 (B) giving to the court a supersedeas bond
3-26 approved by the court for the amount of the penalty and that is
3-27 effective until all judicial review of the commission's order is
4-1 final; or
4-2 (2) request the court to stay enforcement of the
4-3 penalty by:
4-4 (A) filing with the court a sworn affidavit of
4-5 the person stating that the person is financially unable to pay the
4-6 amount of the penalty and is financially unable to give the
4-7 supersedeas bond; and
4-8 (B) giving a copy of the affidavit to the
4-9 commission by certified mail.
4-10 (l) If the commission receives a copy of an affidavit under
4-11 Subsection (k)(2) of this section, the commission may file with the
4-12 court not later than the fifth day after the date the copy is
4-13 received a contest to the affidavit. The court shall hold a
4-14 hearing on the facts alleged in the affidavit as soon as
4-15 practicable and shall stay the enforcement of the penalty on
4-16 finding that the alleged facts are true. The person who files an
4-17 affidavit has the burden of proving that the person is financially
4-18 unable to pay the amount of the penalty and to give a supersedeas
4-19 bond.
4-20 (m) If the person does not pay the amount of the penalty and
4-21 the enforcement of the penalty is not stayed, the commission may
4-22 refer the matter to the attorney general for collection of the
4-23 amount of the penalty.
4-24 (n) Judicial review of the order of the commission:
4-25 (1) is instituted by bringing an action as provided by
4-26 Section 6, Texas Unemployment Compensation Act (Article 5221b-4,
4-27 Vernon's Texas Civil Statutes), and its subsequent amendments; and
5-1 (2) is under the substantial evidence rule.
5-2 (o) If the court sustains the occurrence of the violation,
5-3 the court may uphold or reduce the amount of the penalty and order
5-4 the person to pay the full or reduced amount of the penalty. If
5-5 the court does not sustain the occurrence of the violation, the
5-6 court shall order that no penalty is owed.
5-7 (p) When the judgment of the court becomes final, the court
5-8 shall proceed under this subsection. If the person paid the amount
5-9 of the penalty and if that amount is reduced or is not upheld by
5-10 the court, the court shall order that the appropriate amount plus
5-11 accrued interest be remitted to the person. The rate of the
5-12 interest is the rate charged on loans to depository institutions by
5-13 the New York Federal Reserve Bank, and the interest shall be paid
5-14 for the period beginning on the date the penalty was paid and
5-15 ending on the date the penalty is remitted. If the person gave a
5-16 supersedeas bond and if the amount of the penalty is not upheld by
5-17 the court, the court shall order the release of the bond. If the
5-18 person gave a supersedeas bond and if the amount of the penalty is
5-19 reduced, the court shall order the release of the bond after the
5-20 person pays the amount.
5-21 (q) The attorney general may bring a suit in a district
5-22 court in Travis County to enforce a final order from which an
5-23 appeal under this Act has not been taken. In the suit and on the
5-24 request of the attorney general, the court may order payment of
5-25 attorney fees, including investigation costs and other costs of
5-26 court.
5-27 (r) A penalty collected under this section shall be remitted
6-1 to the comptroller for deposit in the general revenue fund.
6-2 Sec. 14. INJUNCTION: ATTORNEY GENERAL ACTION. The attorney
6-3 general may seek injunctive relief in district court against an
6-4 employer who repeatedly fails to pay wages as required by this Act.
6-5 SECTION 3. (a) The change in law made by Section 12,
6-6 Chapter 531, Acts of the 67th Legislature, Regular Session, 1981
6-7 (Article 5181.1, Vernon's Texas Civil Statutes), as amended by
6-8 Section 1 of this Act, applies only to the punishment for an
6-9 offense committed on or after the effective date of this Act. For
6-10 purposes of this section, an offense is committed before the
6-11 effective date of this Act if any element of the offense occurs
6-12 before the effective date.
6-13 (b) An offense committed before the effective date of this
6-14 Act is covered by the law in effect when the offense was committed,
6-15 and the former law is continued in effect for that purpose.
6-16 SECTION 4. This Act takes effect September 1, 1993.
6-17 SECTION 5. The importance of this legislation and the
6-18 crowded condition of the calendars in both houses create an
6-19 emergency and an imperative public necessity that the
6-20 constitutional rule requiring bills to be read on three several
6-21 days in each house be suspended, and this rule is hereby suspended.