By: Sibley S.B. No. 944
73R5332 CAS-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to assessing a fee for the costs of certain administrative
1-3 penalty hearings of the Department of Agriculture.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Sections 12.020(i), (j), (k), (l), (m), (n), (o),
1-6 and (p), Agriculture Code, are amended to read as follows:
1-7 (i) If the person charged requests a hearing or fails to
1-8 timely respond to the notice, the department shall set a hearing
1-9 and give notice of the hearing. The hearing shall be held by a
1-10 hearing examiner designated by the department. The hearing
1-11 examiner shall make findings of fact and conclusions of law and
1-12 promptly issue to the commissioner a proposal for decision as to
1-13 the occurrence of the violation, including a recommendation as to
1-14 the amount of the proposed penalty if a penalty is warranted.
1-15 Based on the findings of fact, conclusions of law, and
1-16 recommendations of the hearing examiner, the commissioner by order
1-17 may find a violation has occurred and may assess a penalty or may
1-18 find that no violation has occurred. All proceedings under this
1-19 subsection are subject to the Administrative Procedure and Texas
1-20 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes). In
1-21 addition to recommending a penalty, the hearing examiner may
1-22 recommend to the commissioner that the person charged with the
1-23 violation pay a fee for the costs of the hearing. The fee may not
1-24 exceed $1,000 for each violation. The commissioner may assess a
2-1 fee as recommended by the hearing examiner if the commissioner
2-2 determines that:
2-3 (1) the person has committed the violation charged;
2-4 and
2-5 (2) the request for a hearing was groundless and
2-6 brought in bad faith or for purposes of harassment.
2-7 (j) The department shall give notice of the commissioner's
2-8 order to the person charged. The notice shall include:
2-9 (1) the findings of fact and conclusions of law
2-10 separately stated;
2-11 (2) the amount of the penalty and hearing fee ordered,
2-12 if any;
2-13 (3) a statement of the right of the person charged to
2-14 judicial review of the commissioner's order, if any; and
2-15 (4) other information required by law.
2-16 (k) Within the 30-day period immediately following the day
2-17 on which the order becomes final as provided by Subsection (c),
2-18 Section 16, Administrative Procedure and Texas Register Act
2-19 (Article 6252-13a, Vernon's Texas Civil Statutes), the person
2-20 charged with the penalty shall:
2-21 (1) pay the penalty and any hearing fee in full; or
2-22 (2) if the person files a petition for judicial review
2-23 contesting either the amount of the penalty or hearing fee or the
2-24 fact of the violation <or contesting both the fact of the violation
2-25 and the amount of the penalty>:
2-26 (A) forward the amount of the penalty and any
2-27 hearing fee to the department for placement in an escrow account;
3-1 or
3-2 (B) in lieu of payment into escrow, post with
3-3 the department a supersedeas bond in a form approved by the
3-4 department for the amount of the penalty and any hearing fee, the
3-5 bond to be effective until all judicial review of the order or
3-6 decision is final.
3-7 (l) If a person charged is financially unable to either
3-8 forward the amount of the penalty and any hearing fee for placement
3-9 in an escrow account or post a supersedeas bond for the amount of
3-10 the penalty and any hearing fee, the person may satisfy the
3-11 requirements of Subsection (k)(2) of this section by filing with
3-12 the department an affidavit sworn by the person charged, stating
3-13 that the person is financially unable to either forward the amount
3-14 of the penalty and any hearing fee or post a bond.
3-15 (m) Failure to forward the money to or to post the bond or
3-16 file the affidavit with the department within the time provided by
3-17 Subsection (k) of this section results in a waiver of all legal
3-18 rights to judicial review. Also, if the person charged fails to
3-19 pay the penalty and any hearing fee in full as provided under
3-20 Subsection (k)(1) of this section or forward the money, post the
3-21 bond, or file the affidavit as provided by Subsection (k) or (l) of
3-22 this section, the department may forward the matter to the attorney
3-23 general for enforcement.
3-24 (n) Judicial review of the order or decision of the
3-25 department assessing the penalty and any hearing fee shall be under
3-26 the substantial evidence rule and shall be instituted by filing a
3-27 petition with a district court in Travis County, as provided by
4-1 Section 19, Administrative Procedure and Texas Register Act
4-2 (Article 6252-13a, Vernon's Texas Civil Statutes).
4-3 (o) If the penalty or hearing fee is reduced or not assessed
4-4 by the court, the department shall remit to the person charged the
4-5 appropriate amount plus accrued interest if the penalty or hearing
4-6 fee has been paid or shall execute a release of the bond if a
4-7 supersedeas bond has been posted. The accrued interest on amounts
4-8 remitted by the department under this subsection shall be paid at a
4-9 rate equal to the rate charged on loans to depository institutions
4-10 by the New York Federal Reserve Bank and shall be paid for the
4-11 period beginning on the date the penalty or hearing fee is paid to
4-12 the department under Subsection (k) of this section and ending on
4-13 the date the penalty or hearing fee is remitted.
4-14 (p) A penalty collected under this section shall be
4-15 deposited in the state treasury to the credit of the General
4-16 Revenue Fund. A hearing fee collected under this section shall be
4-17 deposited in a fund outside of the state treasury and used by the
4-18 department to pay costs of conducting a hearing under Subsection
4-19 (i) of this section.
4-20 SECTION 2. Sections 76.1555(h), (i), (j), (m), (n), and (p),
4-21 Agriculture Code, are amended to read as follows:
4-22 (h) If the person charged requests a hearing or fails to
4-23 timely respond to the notice, the department shall set a hearing
4-24 and give notice of the hearing. The hearing shall be held by a
4-25 hearing examiner designated by the department. The hearing
4-26 examiner shall make findings of fact and conclusions of law and
4-27 promptly issue to the commissioner a proposal for decision as to
5-1 the occurrence of the violation, including a recommendation as to
5-2 the amount of the proposed penalty if a penalty is warranted.
5-3 Based on the findings of fact, conclusions of law, and
5-4 recommendations of the hearing examiner, the commissioner by order
5-5 may find a violation has occurred and may assess a penalty or may
5-6 find that no violation has occurred. All proceedings under this
5-7 subsection are subject to the Administrative Procedure and Texas
5-8 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes). In
5-9 addition to recommending a penalty, the hearing examiner may
5-10 recommend to the commissioner that the person charged with the
5-11 violation pay a fee for the costs of the hearing. The fee may not
5-12 exceed $1,000 for each violation. The commissioner may assess a
5-13 fee as recommended by the hearing examiner if the commissioner
5-14 determines that:
5-15 (1) the person has committed the violation charged;
5-16 and
5-17 (2) the request for a hearing was groundless and
5-18 brought in bad faith or for purposes of harassment.
5-19 (i) The department shall give notice of the commissioner's
5-20 order to the person charged. The notice shall include:
5-21 (1) the findings of fact and conclusions of law
5-22 separately stated;
5-23 (2) the amount of the penalty and hearing fee ordered,
5-24 if any;
5-25 (3) a statement of the right of the person charged to
5-26 judicial review of the commissioner's order, if any; and
5-27 (4) other information required by law.
6-1 (j) Within the 30-day period immediately following the day
6-2 on which the order becomes final as provided by Section 16(c),
6-3 Administrative Procedure and Texas Register Act (Article 6252-13a,
6-4 Vernon's Texas Civil Statutes), the person charged with the penalty
6-5 shall:
6-6 (1) pay the penalty and any hearing fee in full; or
6-7 (2) if the person files a petition for judicial review
6-8 contesting either the amount of the penalty or hearing fee or the
6-9 fact of the violation <or contesting both the fact of the violation
6-10 and the amount of the penalty>, post a supersedeas bond in a form
6-11 approved by the department for the amount of the penalty and any
6-12 hearing fee or $1,000, whichever is less, the bond to be effective
6-13 until all judicial review of the order or decision is final.
6-14 (m) Failure to post the bond or file the affidavit within
6-15 the time provided by Subsection (j) of this section results in a
6-16 waiver of all legal rights to judicial review. Also, if the person
6-17 charged fails to pay the penalty and any hearing fee in full as
6-18 provided under Subsection (j)(1) of this section or post the bond
6-19 or file the affidavit as provided by Subsection (j) or (l) of this
6-20 section, the department may forward the matter to the attorney
6-21 general for enforcement.
6-22 (n) Judicial review of the order or decision of the
6-23 department assessing the penalty and any hearing fee shall be under
6-24 the substantial evidence rule and shall be instituted by filing a
6-25 petition with a district court in Travis County, as provided by
6-26 Section 19, Administrative Procedure and Texas Register Act
6-27 (Article 6252-13a, Vernon's Texas Civil Statutes).
7-1 (p) A penalty collected under this section shall be
7-2 deposited in the state treasury to the credit of the General
7-3 Revenue Fund. A hearing fee collected under this section shall be
7-4 deposited in a fund outside the state treasury and used by the
7-5 department to pay costs of conducting a hearing under Subsection
7-6 (h) of this section.
7-7 SECTION 3. This Act applies only to a hearing that begins on
7-8 or after the effective date of this Act.
7-9 SECTION 4. This Act takes effect September 1, 1993.
7-10 SECTION 5. The importance of this legislation and the
7-11 crowded condition of the calendars in both houses create an
7-12 emergency and an imperative public necessity that the
7-13 constitutional rule requiring bills to be read on three several
7-14 days in each house be suspended, and this rule is hereby suspended.