BILL ANALYSIS H.B. 2245 By: Black (Sims) Natural Resources 05-10-95 Senate Committee Report (Unamended) BACKGROUND The Texas Animal Health Commission (TAHC) and its 12-member commission were created in 1893 by the 23rd Legislature. TAHC is responsible for enforcing animal health rules and regulations and oversees the control and eradication of disease in traditional livestock, exotic livestock and fowl, and poultry. The Texas Animal Health Commission is subject to the Sunset Act and will be abolished September 1, 1995 unless continued by the legislature. PURPOSE As proposed, H.B. 2245 provides for the continuation and functions of the Texas Animal Health Commission; provides administrative and criminal penalties. RULEMAKING AUTHORITY It is the committee's opinion that rulemaking authority is granted to the Texas Animal Health Commission under SECTION 17 (Sec. 161.049(e), Agriculture Code), SECTION 18 (Section 161.054, Agriculture Code), and SECTION 23 (Sec. 161.112(b), Agriculture Code) of this bill. SECTION BY SECTION ANALYSIS SECTION 1. Amends Section 146.022, Agriculture Code, to require the Texas Department of Agriculture (department) to enter into any cooperative agreement initiated by the Texas Animal Health Commission (commission) under Section 161.053. SECTION 2. Amends Section 161.001(a), Agriculture Code, to define "animal." Makes nonsubstantive changes. SECTION 3. Amends Section 161.005(b), Agriculture Code, to provide that any written instrument issued by the commission is admissible as evidence in court if certified by the presiding officer, rather than the chairman, or the executive director. SECTION 4. Amends Chapter 161A, Agriculture Code, by adding Section 161.008, as follows: Sec. 161.008. STATE FUNDS REFORM ACT APPLICABLE. Subjects all money paid to the commission under this chapter to Chapter 404F, Government Code. SECTION 5. Amends Section 161.021, Agriculture Code, by amending Subsection (c) and adding Subsection (d) to set forth provisions under which a person is not eligible for appointment as a public member of the commission. Makes a nonsubstantive change. SECTION 6. Amends Chapter 161B, Agriculture Code, by adding Section 161.023, as follows: Sec. 161.023. MANDATORY TRAINING PROGRAM FOR COMMISSIONERS. (a) Requires a member, before a member of the commission may assume the member's duties and before the member may be confirmed by the senate, to complete at least one course of the training program established under this section. (b) Sets forth information a training program established under this section shall provide. SECTION 7. Amends Section 161.024, Agriculture Code, as follows: Sec. 161.024. New heading: PRESIDING OFFICER. Requires the governor to designate a member of the commission as the presiding officer, rather than one commissioner as chairman, of the commission to serve in that capacity at the pleasure of the governor. SECTION 8. Amends Section 161.027, Agriculture Code, to provide that the commission, unless continued in existence as provided by Chapter 325, Government Code, is abolished September 1, 2007, rather than 1995. SECTION 9. Amends Section 161.029(c), Agriculture Code, to require the presiding officer to notify the governor and the attorney general that a potential ground for removal exists. Requires the executive director, if the potential ground for removal involves the presiding officer, to notify the next highest officer of the commission, who shall notify the governor and the attorney general that a potential ground for removal exists. Makes conforming changes. SECTION 10. Amends Section 161.030, Agriculture Code, as follows: Sec. 161.030. SEPARATION OF AUTHORITY. Requires the commission to develop and implement policies that clearly separate, rather than define, the policy-making responsibilities of the commission and the management responsibilities of the executive director. SECTION 11. Amends Section 161.031, Agriculture Code, as follows: Sec. 161.031. PERSONNEL. (a) Requires the executive director or the executive director's designee (executive director) to develop an intraagency career ladder program that addresses opportunities for mobility and advancement for employees within the commission. Requires the program to require intraagency posting of all, rather than nonentry level, positions concurrently with any public posting. (b) Requires the executive director to develop a system of annual performance evaluations that are based on documented employee performance. (c) Makes no change. (d) Requires the policy statement to include policies that are in compliance with the requirements of Chapter 21, Labor Code. Makes conforming and nonsubstantive changes. (e) Requires a policy statement prepared under Subsection (d) of this section to be reviewed by the Texas Commission on Human Rights for compliance with Subsection (d)(1) of this section. SECTION 12. Amends Section 161.032, Agriculture Code, to require the commission to prepare, rather than file with the governor and the presiding officer of each house of the legislature, an annual complete and detailed written report accounting for all funds received and disbursed by the commission during the preceding fiscal year. Requires the annual report to meet the reporting requirements applicable to financial reporting provided in the General Appropriations Act. SECTION 13. Amends Sections 161.033(c) and (d), Agriculture Code, as follows: (c) Requires the commission to keep a file about each written complaint filed with the commission that the commission has authority to resolve. Requires the commission to provide to the person filing the complaint and the persons or entities complained about the commission's policies and procedures pertaining to complaint investigation and resolution. Requires the commission to notify the person filing the complaint and the persons or entities complained about of the status of the complaint unless the notice would jeopardize an undercover investigation. (d) Sets forth provisions the information kept about each complaint shall include. SECTION 14. Amends Section 161.034, Agriculture Code, to subject the commission to the open meetings law, Chapter 551, Government Code. SECTION 15. Amends Chapter 161B, Agriculture Code, by adding Sections 161.035, 161.036, 161.037, and 161.038, as follows: Sec. 161.035. ADVISORY COMMITTEES. (a) Authorizes the commission to establish advisory committees as it considers necessary to assist it in developing proposed rules for the regulation of exotic livestock and exotic fowl. (b) Provides that a member of an advisory committee established under this section serves at the pleasure of the commission. (c) Provides that a member of an advisory committee established under this section is not entitled to compensation. Sec. 161.036. PROGRAM AND FACILITY ACCESSIBILITY. Requires the commission to comply with federal and state laws related to program and facility accessibility. Requires the executive director to prepare and maintain a written plan that describes how a person who does not speak English can be provided access to the commission's programs and services. Sec. 161.037. PERIODIC REVIEW OF AGENCY FUNCTIONS. (a) Requires the commission to periodically review services provided by the commission that are provided in the private sector in order to determine the most cost-effective method for delivering the services. (b) Requires the commission to consult the Council on Competitive Government for assistance during each review performed under this section. Sec. 161.038. ADMINISTRATIVE PROCEDURE ACT APPLICABLE. Subjects the commission to the administrative procedure law, Chapter 2001, Government Code. SECTION 16. Amends Section 161.048, Agriculture Code, as follows: Sec. 161.048. New heading: INSPECTION OF SHIPMENT OF ANIMALS OR ANIMAL PRODUCTS. (a) Entitles an agent of the commission to stop and inspect a shipment of animals, rather than livestock. Makes conforming changes. SECTION 17. Amends Sections 161.049(c), (d), and (e), Agriculture Code, as follows: (c) Authorizes the commission to require a livestock, exotic livestock, domestic fowl, or exotic fowl (livestock) dealer to maintain records of all livestock bought and sold by the dealer. Makes nonsubstantive and conforming changes. (d) Authorizes the commission to inspect and copy, rather than conduct periodic inspections of, the records of a livestock dealer that relate to the buying and selling of those animals. (e) Requires, rather than authorizes, the commission to adopt the form and content of the records maintained by a dealer under Subsection (c) of this section. SECTION 18. Amends Chapter 161C, Agriculture Code, by adding Sections 161.053 and 161.054, as follows: Sec. 161.053. COOPERATIVE AGREEMENTS. Authorizes the commission to enter into a cooperative agreement with the department to use for animal health purposes livestock export pens controlled by the department. Sec. 161.054. IDENTIFICATION OF EXOTIC ANIMALS. Authorizes the commission to adopt rules to establish a standard method for identifying and tracking exotic livestock and exotic fowl. SECTION 19. Amends Section 161.061(b), Agriculture Code, to make nonsubstantive and conforming changes. SECTION 20. Amends Section 161.081(a), Agriculture Code, to make conforming changes. SECTION 21. Amends Section 161.101, Agriculture Code, by amending Subsection (a) and adding Subsection (c), to require the veterinarian, if the animals subject to reporting requirements under this section are exotic livestock or exotic fowl, in addition to reporting information required by Subsections (a) and (b), to report to the commission information relating to the name and address or the owner of the animal involved; and the location of the animal involved. Makes conforming changes. SECTION 22. Amends Section 161.111, Agriculture Code, to make conforming changes. SECTION 23. Amends Section 161.112, Agriculture Code, to authorize the commission, following notice and public hearing, to adopt rules requiring permits for moving exotic livestock and exotic fowl from livestock markets as necessary to protect against the spread of communicable diseases. SECTION 24. Amends Section 161.136(a), Agriculture Code, to make conforming changes. SECTION 25. Amends Section 161.139(a), Agriculture Code, to make nonsubstantive changes. SECTION 26. Amends Section 161.140, Agriculture Code, as follows: Sec. 161.140. New heading: REFUSAL TO PERMIT EXAMINATION OF ANIMAL OR CARCASS. Makes nonsubstantive changes. SECTION 27. Amends Sections 161.141(a) and (b), Agriculture Code, to provide that an offense under this subsection is a Class C misdemeanor for each animal or shipment of commodities moved in violation of the quarantine unless it is shown on the trial of the offense that the defendant has been previously convicted under this section, in which event the offense is a Class B misdemeanor. Makes conforming changes. SECTION 28. Amends Chapter 161H, Agriculture Code, by adding Section 161.148, as follows: Sec. 161.148. ADMINISTRATIVE PENALTY. (a) Authorizes the commission to impose an administrative penalty against a person who violates a rule or order adopted under this subtitle. (b) Authorizes the penalty for a violation to be in an amount not to exceed $1,000. Provides that each day a violation continues or occurs is a separate violation for purposes of imposing a penalty. (c) Sets forth provisions on which the amount of the penalty shall be based. (d) Authorizes an executive director who determines that a violation has occurred to issue to the commission a report that states the facts on which the determination is based and the director's recommendation on the imposition of a penalty, including a recommendation on the amount of the penalty. (e) Requires the executive director, within 14 days after the date the report is issued, to give written notice of the report to the person. Authorizes the notice to be given by certified mail. Requires the notice to include a brief summary of the alleged violation and a statement of the amount of the recommended penalty and to inform the person that the person has a right to a hearing on the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty. (f) Authorizes a person, within 20 days after the person receives the notice, in writing to accept the determination and recommended penalty of the executive director or to make a written request for a hearing on the occurrence of the violation, the amount of the penalty or both the occurrence of the violation and the amount of the penalty. (g) Requires the commissioner, by order, if the person accepts the determination and recommended penalty of the executive director, to approve the determination and impose the recommended penalty. (h) Requires the executive director, if the person requests a hearing or fails to respond timely to the notice, to set a hearing and give notice of the hearing to the person. Requires the hearing to be held by an administrative law judge of the State Office of Administrative Hearings. Requires the administrative law judge to make findings of fact and conclusions of law and promptly issue to the commission a proposal for a decision about the occurrence of the violation and the amount of a proposed penalty. Authorizes the commission, based on the findings of fact, conclusions of law, and proposal for a decision, to find that a violation has occurred and impose a penalty or to find that no violation occurred. (i) Requires the notice of the commissioner's order given to the person under Chapter 2001, Government Code, to include a statement of the right of the person to judicial review of the order. (j) Sets forth provisions required of a person within 30 days after the date the commission's order becomes final as provided by Section 2001.144, Government Code. (k) Sets forth provisions under which a person who acts under Subsection (j)(3) of this section, within the 30-day period, may stay enforcement of the penalty or request the court to stay enforcement of the penalty. (l) Authorizes an executive director who receives a copy of an affidavit under Subsection (k)(2) of this section to file with the court, within five days after the date the copy is received, a contest to the affidavit. Requires the court to hold a hearing on the facts alleged in the affidavit as soon as practicable and to stay the enforcement of the penalty on finding that the alleged facts are true. Provides that the person who files an affidavit has the burden of proving that the person is financially unable to pay the amount of the penalty and to give a supersedeas bond. (m) Authorizes the executive director, if the person does not pay the amount of the penalty and the enforcement of the penalty is not stayed, to refer the matter to the attorney general for collection of the amount of the penalty. (n) Provides that judicial review of the order of the commissioner is instituted by filing a petition as provided by Chapter 2001G, Government Code; and is under the substantial evidence rule. (o) Authorizes the court, if the court sustains the occurrence of the violation, to uphold or reduce the amount of the penalty and order the person to pay the full or reduced amount of the penalty. Requires the court, if the court does not sustain the occurrence of the violation, to order that no penalty is owed. (p) Requires the court to proceed under this subsection when the judgment of the court becomes final. Requires the court, if the person paid the amount of the penalty and if that amount is reduced or is not upheld by the court, to order that the appropriate amount plus accrued interest be remitted to the person. Provides that the rate of the interest is the rate charged on loans to depository institutions by the New York Federal Reserve Bank, and the interest shall be paid for the period beginning on the date the penalty was paid and ending on the date the penalty is remitted. Requires the court to order the release of the bond if the person gave a supersedeas bond and if the amount of the penalty is not upheld by the court. Requires the court, if the person gave a supersedeas bond and if the amount of the penalty is reduced, to order the release of the bond after the person pays the amount. (q) Requires a penalty collected under this section to be remitted to the comptroller for deposit in the general revenue fund. (r) Subjects all proceedings under this section to Chapter 2001, Government Code. SECTION 29. Amends Section 164.006, Agriculture Code, as follows: Sec. 164.006. New heading: ACTIONS OF COMMISSION. Makes conforming changes. SECTION 30. Amends Section 164.021(b), Agriculture Code, to make a conforming change. SECTION 31. Amends Sections 164.022(a) and (b), Agriculture Code, to make conforming changes. SECTION 32. Amends Section 167.052(a), Agriculture Code, to make a conforming change. SECTION 33. Amends Section 167.059(c), Agriculture Code, to make a conforming change. SECTION 34. Amends Section 167.109(a), Agriculture Code, to make a conforming change. SECTION 35. (a) Makes application of Section 161.021(d), Agriculture Code, as added by this Act, prospective beginning September 1, 1995. (b) Makes application of Section 161.023, Agriculture Code, as added by this Act, prospective beginning September 1, 1995. (c) Makes application of Sections 24, 25, 26, and 27 of this Act prospective. SECTION 36. Effective date: September 1, 1995. SECTION 37. Emergency clause.