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.