1-1 By: Ellis S.B. No. 939
1-2 (In the Senate - Filed March 11, 1993; March 15, 1993, read
1-3 first time and referred to Committee on Health and Human Services;
1-4 May 4, 1993, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 8, Nays 0; May 4, 1993,
1-6 sent to printer.)
1-7 COMMITTEE VOTE
1-8 Yea Nay PNV Absent
1-9 Zaffirini x
1-10 Ellis x
1-11 Madla x
1-12 Moncrief x
1-13 Nelson x
1-14 Patterson x
1-15 Shelley x
1-16 Truan x
1-17 Wentworth x
1-18 COMMITTEE SUBSTITUTE FOR S.B. No. 939 By: Ellis
1-19 A BILL TO BE ENTITLED
1-20 AN ACT
1-21 relating to the employment of children; providing criminal and
1-22 administrative penalties.
1-23 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-24 SECTION 1. Section 12, Chapter 531, Acts of the 67th
1-25 Legislature, Regular Session, 1981 (Article 5181.1, Vernon's Texas
1-26 Civil Statutes), is amended to read as follows:
1-27 Sec. 12. PENALTY. An offense under this Act is a Class A
1-28 <C> misdemeanor.
1-29 SECTION 2. Chapter 531, Acts of the 67th Legislature,
1-30 Regular Session, 1981 (Article 5181.1, Vernon's Texas Civil
1-31 Statutes), is amended by adding Sections 13 and 14 to read as
1-32 follows:
1-33 Sec. 13. ADMINISTRATIVE PENALTY. (a) If the commission
1-34 determines that a person who employs a child has violated this Act
1-35 or a rule adopted under this Act, the commission may assess an
1-36 administrative penalty against that person as provided by this
1-37 section.
1-38 (b) The penalty for a violation may be in an amount not to
1-39 exceed $10,000.
1-40 (c) The amount of the penalty shall be based on:
1-41 (1) the seriousness of the violation, including the
1-42 nature, circumstances, extent, and gravity of any prohibited acts;
1-43 (2) the history of previous violations;
1-44 (3) the amount necessary to deter future violations;
1-45 (4) efforts to correct the violation; and
1-46 (5) any other matter that justice may require.
1-47 (d) If, after examination of a possible violation and the
1-48 facts relating to that possible violation, the commission
1-49 determines that a violation has occurred, the commission shall
1-50 issue a preliminary determination that states the facts on which
1-51 the determination is based, the fact that an administrative penalty
1-52 is to be imposed, and the amount of the penalty.
1-53 (e) Not later than the 14th day after the date the report is
1-54 issued, the commission shall give written notice of the preliminary
1-55 determination to the person charged with the violation. The notice
1-56 must include a brief summary of the alleged violation and a
1-57 statement of the amount of the recommended penalty and must inform
1-58 the person that the person has a right to a hearing on the
1-59 occurrence of the violation, the amount of the penalty, or both the
1-60 occurrence of the violation and the amount of the penalty.
1-61 (f) Not later than the 20th day after the date on which the
1-62 notice is mailed, the person may make a written request for a
1-63 hearing on the occurrence of the violation, the amount of the
1-64 penalty, or both the occurrence of the violation and the amount of
1-65 the penalty.
1-66 (g) If the person requests a hearing, the commission shall
1-67 set a hearing and give notice of the hearing to the person. The
1-68 hearing is subject to the commission rules and hearings procedures
2-1 used by the commission to determine a claim under the Texas
2-2 Unemployment Compensation Act (Article 5221b-1 et seq., Vernon's
2-3 Texas Civil Statutes) and its subsequent amendments. The hearings
2-4 examiner shall issue a decision.
2-5 (h) If it is determined after the hearing that a penalty may
2-6 be imposed, the commission shall enter a written order to that
2-7 effect. The commission shall notify the person in writing of the
2-8 decision and the amount of the penalty imposed.
2-9 (i) The notice of the commission's order must include a
2-10 statement of the right of the person to judicial review of the
2-11 order.
2-12 (j) Not later than the 30th day after the date the
2-13 commission's order is final, the person shall:
2-14 (1) pay the amount of the penalty;
2-15 (2) pay the amount of the penalty and file a petition
2-16 for judicial review contesting the occurrence of the violation, the
2-17 amount of the penalty, or both the occurrence of the violation and
2-18 the amount of the penalty; or
2-19 (3) without paying the amount of the penalty, file a
2-20 petition for judicial review contesting the occurrence of the
2-21 violation, the amount of the penalty, or both the occurrence of the
2-22 violation and the amount of the penalty.
2-23 (k) Within the 30-day period, a person who acts under
2-24 Subsection (j)(3) of this section may:
2-25 (1) stay enforcement of the penalty by:
2-26 (A) paying the amount of the penalty to the
2-27 court for placement in an escrow account; or
2-28 (B) giving to the court a supersedeas bond
2-29 approved by the court for the amount of the penalty and that is
2-30 effective until all judicial review of the commission's order is
2-31 final; or
2-32 (2) request the court to stay enforcement of the
2-33 penalty by:
2-34 (A) filing with the court a sworn affidavit of
2-35 the person stating that the person is financially unable to pay the
2-36 amount of the penalty and is financially unable to give the
2-37 supersedeas bond; and
2-38 (B) giving a copy of the affidavit to the
2-39 commission by certified mail.
2-40 (l) If the commission receives a copy of an affidavit under
2-41 Subsection (k)(2) of this section, the commission may file with the
2-42 court not later than the fifth day after the date the copy is
2-43 received a contest to the affidavit. The court shall hold a
2-44 hearing on the facts alleged in the affidavit as soon as
2-45 practicable and shall stay the enforcement of the penalty on
2-46 finding that the alleged facts are true. The person who files an
2-47 affidavit has the burden of proving that the person is financially
2-48 unable to pay the amount of the penalty and to give a supersedeas
2-49 bond.
2-50 (m) If the person does not pay the amount of the penalty and
2-51 the enforcement of the penalty is not stayed, the commission may
2-52 refer the matter to the attorney general for collection of the
2-53 amount of the penalty.
2-54 (n) Judicial review of the order of the commission:
2-55 (1) is instituted by bringing an action as provided by
2-56 Section 6, Texas Unemployment Compensation Act (Article 5221b-4,
2-57 Vernon's Texas Civil Statutes), and its subsequent amendments; and
2-58 (2) is under the substantial evidence rule.
2-59 (o) If the court sustains the occurrence of the violation,
2-60 the court may uphold or reduce the amount of the penalty and order
2-61 the person to pay the full or reduced amount of the penalty. If
2-62 the court does not sustain the occurrence of the violation, the
2-63 court shall order that no penalty is owed.
2-64 (p) When the judgment of the court becomes final, the court
2-65 shall proceed under this subsection. If the person paid the amount
2-66 of the penalty and if that amount is reduced or is not upheld by
2-67 the court, the court shall order that the appropriate amount plus
2-68 accrued interest be remitted to the person. The rate of the
2-69 interest is the rate charged on loans to depository institutions by
2-70 the New York Federal Reserve Bank, and the interest shall be paid
3-1 for the period beginning on the date the penalty was paid and
3-2 ending on the date the penalty is remitted. If the person gave a
3-3 supersedeas bond and if the amount of the penalty is not upheld by
3-4 the court, the court shall order the release of the bond. If the
3-5 person gave a supersedeas bond and if the amount of the penalty is
3-6 reduced, the court shall order the release of the bond after the
3-7 person pays the amount.
3-8 (q) The attorney general may bring a suit in a district
3-9 court in Travis County to enforce a final order from which an
3-10 appeal under this Act has not been taken. In the suit and on the
3-11 request of the attorney general, the court may order payment of
3-12 attorney fees, including investigation costs and other costs of
3-13 court.
3-14 (r) A penalty collected under this section shall be remitted
3-15 to the comptroller for deposit in the general revenue fund.
3-16 Sec. 14. INJUNCTION: ATTORNEY GENERAL ACTION. The attorney
3-17 general may seek injunctive relief in district court against an
3-18 employer who repeatedly fails to pay wages as required by this Act.
3-19 SECTION 3. (a) The change in law made by Section 12,
3-20 Chapter 531, Acts of the 67th Legislature, Regular Session, 1981
3-21 (Article 5181.1, Vernon's Texas Civil Statutes), as amended by
3-22 Section 1 of this Act, applies only to the punishment for an
3-23 offense committed on or after the effective date of this Act. For
3-24 purposes of this section, an offense is committed before the
3-25 effective date of this Act if any element of the offense occurs
3-26 before the effective date.
3-27 (b) An offense committed before the effective date of this
3-28 Act is covered by the law in effect when the offense was committed,
3-29 and the former law is continued in effect for that purpose.
3-30 SECTION 4. This Act takes effect September 1, 1993.
3-31 SECTION 5. The importance of this legislation and the
3-32 crowded condition of the calendars in both houses create an
3-33 emergency and an imperative public necessity that the
3-34 constitutional rule requiring bills to be read on three several
3-35 days in each house be suspended, and this rule is hereby suspended.
3-36 * * * * *
3-37 Austin,
3-38 Texas
3-39 May 4, 1993
3-40 Hon. Bob Bullock
3-41 President of the Senate
3-42 Sir:
3-43 We, your Committee on Health and Human Services to which was
3-44 referred S.B. No. 939, have had the same under consideration, and I
3-45 am instructed to report it back to the Senate with the
3-46 recommendation that it do not pass, but that the Committee
3-47 Substitute adopted in lieu thereof do pass and be printed.
3-48 Zaffirini,
3-49 Chair
3-50 * * * * *
3-51 WITNESSES
3-52 FOR AGAINST ON
3-53 ___________________________________________________________________
3-54 Name: Wendell Telton x
3-55 Representing: TX Coal. Prevention of Child
3-56 City: Austin
3-57 -------------------------------------------------------------------
3-58 Name: C. Ed Davis x
3-59 Representing: TEC
3-60 City: Austin
3-61 -------------------------------------------------------------------
3-62 Name: Shari Holland x
3-63 Representing: Leg Budget Off
3-64 City: Austin
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