H.B. No. 1028
    1-1                                AN ACT
    1-2  relating to the enforcement of certain regulations regarding the
    1-3  employment of children.
    1-4        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-5        SECTION 1.  Section 51.021(a), Labor Code, is amended to read
    1-6  as follows:
    1-7        (a)  The commission, or a person designated by the
    1-8  commission, may, during working hours:
    1-9              (1)  inspect a place where there is good reason to
   1-10  believe that a child is employed or has been employed within the
   1-11  last two years; and
   1-12              (2)  collect information concerning the employment of a
   1-13  child who works or within the last two years has worked at that
   1-14  place.
   1-15        SECTION 2.  Subchapter C, Chapter 51, Labor Code, is amended
   1-16  by adding Section 51.024 to read as follows:
   1-17        Sec. 51.024.  POWERS OF COMMISSION; PENALTY.  (a)  The
   1-18  commission may require reports, conduct investigations, and take
   1-19  other action it considers necessary to implement this chapter.
   1-20        (b)  In the discharge of the duties imposed by this chapter,
   1-21  a member of the commission or an authorized representative of the
   1-22  commission may administer oaths and affirmations, take depositions,
   1-23  certify official acts, and issue subpoenas to compel the attendance
   1-24  of witnesses who may be found within 100 miles of the relevant
    2-1  event and the production of books, papers, correspondence,
    2-2  memoranda, or other records considered necessary as evidence in the
    2-3  administration of this chapter.  Notwithstanding Chapter 152 or
    2-4  154, Local Government Code, or any other law of this state, the
    2-5  commission shall pay the fee of a sheriff or constable for serving
    2-6  a subpoena under this subsection from the administrative funds of
    2-7  the commission, and the comptroller shall issue a warrant for that
    2-8  fee as directed by the commission.
    2-9        (c)  In the case of contumacy or other refusal to obey a
   2-10  subpoena issued by a member of the commission or an authorized
   2-11  representative of the commission, a county court or district court
   2-12  within the jurisdiction of which the inquiry is conducted or the
   2-13  person guilty of contumacy or refusal to obey is found, resides, or
   2-14  transacts business has jurisdiction on application by the
   2-15  commission or its representative to issue to the person an order
   2-16  requiring the person to appear before a commissioner, the
   2-17  commission, or an authorized representative of the commission to
   2-18  produce evidence or give testimony regarding the matter under
   2-19  investigation.  Failure to obey the court order may be punished by
   2-20  the court as contempt.
   2-21        (d)  A person commits an offense if the person, without just
   2-22  cause, fails or refuses to obey a commission subpoena to:
   2-23              (1)  attend and testify;
   2-24              (2)  answer any lawful inquiry; or
   2-25              (3)  produce books, papers, correspondence, memoranda,
   2-26  or other records.
   2-27        (e)  An offense under Subsection (d) is punishable by a fine
    3-1  of not less than $200, by confinement for not more than 60 days, or
    3-2  by both fine and confinement.  Each day of violation constitutes a
    3-3  separate offense.
    3-4        SECTION 3.  Subchapter D, Chapter 51, Labor Code, is amended
    3-5  by adding Section 51.033 to read as follows:
    3-6        Sec. 51.033.  ADMINISTRATIVE PENALTY.  (a)  If the commission
    3-7  determines that a person who employs a child has violated this
    3-8  chapter or a rule adopted under this chapter, the commission may
    3-9  assess an administrative penalty against that person as provided by
   3-10  this section.
   3-11        (b)  The penalty for a violation may be in an amount not to
   3-12  exceed $10,000.
   3-13        (c)  The amount of the penalty shall be based on:
   3-14              (1)  the seriousness of the violation, including the
   3-15  nature, circumstances, extent, and gravity of any prohibited acts;
   3-16              (2)  the history of previous violations;
   3-17              (3)  the amount necessary to deter future violations;
   3-18              (4)  efforts to correct the violation; and
   3-19              (5)  any other matter that justice may require.
   3-20        (d)  If, after examination of a possible violation and the
   3-21  facts relating to that possible violation, the commission
   3-22  determines that a violation has occurred, the commission shall
   3-23  issue a preliminary determination that states the facts on which
   3-24  the determination is based, the fact that an administrative penalty
   3-25  is to be imposed, and the amount of the penalty.
   3-26        (e)  Not later than the 14th day after the date the report is
   3-27  issued, the commission shall give written notice of the preliminary
    4-1  determination to the person charged with the violation.  The notice
    4-2  must include a brief summary of the alleged violation and a
    4-3  statement of the amount of the recommended penalty and must inform
    4-4  the person that the person has a right to a hearing on the
    4-5  occurrence of the violation, the amount of the penalty, or both the
    4-6  occurrence of the violation and the amount of the penalty.
    4-7        (f)  Not later than the 21st day after the date on which the
    4-8  notice is mailed, the person may make a written request for a
    4-9  hearing on the occurrence of the violation, the amount of the
   4-10  penalty, or both the occurrence of the violation and the amount of
   4-11  the penalty.
   4-12        (g)  If the person requests a hearing, the commission shall
   4-13  set a hearing and give notice of the hearing to the person not
   4-14  later than the 21st day after the date a request for the hearing is
   4-15  received by the commission.  As soon as practicable, but not later
   4-16  than the 45th day after the date the hearing notice is mailed, the
   4-17  commission shall conduct the hearing.  The hearing is subject to
   4-18  the commission rules and hearings procedures used by the commission
   4-19  to determine a claim under Subtitle A, Title 4, but is not subject
   4-20  to Chapter 2001, Government Code.  The hearings examiner shall
   4-21  issue a decision.
   4-22        (h)  If it is determined after the hearing that a penalty may
   4-23  be imposed, the commission shall enter a written order to that
   4-24  effect.  The commission shall notify the person in writing of the
   4-25  decision and the amount of the penalty imposed by mailing the
   4-26  notice to the person at the person's last known address as
   4-27  reflected by commission records.  The order of the commission
    5-1  becomes final 14 days after the date of mailing, unless, within 14
    5-2  days after the date of the mailing, the hearing is reopened by
    5-3  commission order or the person files a written motion for
    5-4  rehearing.
    5-5        (i)  The notice of the commission's order must include a
    5-6  statement of the right of the person to judicial review of the
    5-7  order.
    5-8        (j)  Not later than the 30th day after the date the
    5-9  commission's final order is mailed, the person shall:
   5-10              (1)  pay the amount of the penalty;
   5-11              (2)  pay the amount of the penalty and file a petition
   5-12  for judicial review contesting the occurrence of the violation, the
   5-13  amount of the penalty, or both the occurrence of the violation and
   5-14  the amount of the penalty; or
   5-15              (3)  without paying the amount of the penalty, file a
   5-16  petition for judicial review contesting the occurrence of the
   5-17  violation, the amount of the penalty, or both the occurrence of the
   5-18  violation and the amount of the penalty.
   5-19        (k)  Within the 30-day period, a person who acts under
   5-20  Subsection (j)(3) may:
   5-21              (1)  stay enforcement of the penalty by:
   5-22                    (A)  paying the amount of the penalty to the
   5-23  court for placement in an escrow account; or
   5-24                    (B)  giving to the court a supersedeas bond
   5-25  approved by the court that is for the amount of the penalty and
   5-26  that is effective until all judicial review of the commission's
   5-27  order is final; or
    6-1              (2)  request the court to stay enforcement of the
    6-2  penalty by:
    6-3                    (A)  filing with the court a sworn affidavit of
    6-4  the person stating that the person is financially unable to pay the
    6-5  amount of the penalty and is financially unable to give the
    6-6  supersedeas bond; and
    6-7                    (B)  giving a copy of the affidavit to the
    6-8  commission by certified mail.
    6-9        (l)  If the commission receives a copy of an affidavit under
   6-10  Subsection (k)(2), the commission may file with the court not later
   6-11  than the fifth day after the date the copy is received a contest to
   6-12  the affidavit.  The court shall hold a hearing on the facts alleged
   6-13  in the affidavit as soon as practicable and shall stay the
   6-14  enforcement of the penalty on finding that the alleged facts are
   6-15  true.  The person who files an affidavit has the burden of proving
   6-16  that the person is financially unable to pay the amount of the
   6-17  penalty and to give a supersedeas bond.
   6-18        (m)  If the person does not pay the amount of the penalty and
   6-19  the enforcement of the penalty is not stayed, the commission may
   6-20  refer the matter to the attorney general for collection of the
   6-21  amount of the penalty.
   6-22        (n)  Judicial review of the order of the commission:
   6-23              (1)  is instituted by bringing an action as provided by
   6-24  Subchapter E, Chapter 212; and
   6-25              (2)  is under the substantial evidence rule.
   6-26        (o)  If the court sustains the occurrence of the violation,
   6-27  the court may uphold or reduce the amount of the penalty and order
    7-1  the person to pay the full or reduced amount of the penalty.  If
    7-2  the court does not sustain the occurrence of the violation, the
    7-3  court shall order that a penalty is not owed.
    7-4        (p)  When the judgment of the court becomes final, the court
    7-5  shall proceed under this subsection.  If the person paid the amount
    7-6  of the penalty and if that amount is reduced or is not upheld by
    7-7  the court, the court shall order that the appropriate amount plus
    7-8  accrued interest be remitted to the person.  The rate of the
    7-9  interest is the rate charged on loans to depository institutions by
   7-10  the New York Federal Reserve Bank, and the interest shall be paid
   7-11  for the period beginning on the date the penalty was paid and
   7-12  ending on the date the penalty is remitted.  If the person gave a
   7-13  supersedeas bond and if the amount of the penalty is not upheld by
   7-14  the court, the court shall order the release of the bond.  If the
   7-15  person gave a supersedeas bond and if the amount of the penalty is
   7-16  reduced, the court shall order the release of the bond after the
   7-17  person pays the amount.
   7-18        (q)  The attorney general may bring a suit in a district
   7-19  court in Travis County to enforce a final order from which an
   7-20  appeal under this chapter has not been taken.  In the suit and on
   7-21  the request of the attorney general, the court may order payment of
   7-22  attorney's fees and other costs of court.
   7-23        (r)  A penalty collected under this section shall be remitted
   7-24  to the comptroller for deposit in the general revenue fund.
   7-25        SECTION 4.  Chapter 51, Labor Code, is amended by adding
   7-26  Subchapter E to read as follows:
   7-27                 SUBCHAPTER E.  COLLECTION OF PENALTY
    8-1        Sec. 51.041.  DEFINITION.  In this subchapter, "asset" means:
    8-2                  (1)  a credit, bank, or savings account or deposit;
    8-3  or
    8-4              (2)  any other intangible or personal property.
    8-5        Sec. 51.042.  NOTICE OF DELINQUENCY.  (a)  If, under a final
    8-6  order, a person is determined to be delinquent in the payment of
    8-7  any amount, including penalties, interest, or other amounts due
    8-8  under this chapter, the commission may notify personally or by mail
    8-9  any other person who:
   8-10              (1)  possesses or controls an asset belonging to the
   8-11  delinquent person; or
   8-12              (2)  owes a debt to the delinquent person.
   8-13        (b)  A notice under this section to a state officer,
   8-14  department, or agency must be given before the officer, department,
   8-15  or agency presents to the comptroller the claim of the delinquent
   8-16  person.
   8-17        (c)  A notice under this section may be given at any time
   8-18  after the amount due under this chapter becomes delinquent.  The
   8-19  notice must state the amount of wages, penalties, interest, or
   8-20  other amounts due, and any additional amount that will accrue by
   8-21  operation of law in a period not to exceed 30 days after the date
   8-22  on which the notice is given and, in the case of a credit, bank, or
   8-23  savings account or deposit, is effective only up to that amount.
   8-24        Sec. 51.043.  DUTIES OF NOTICE RECIPIENT.  (a)  On receipt of
   8-25  a notice under Section 51.042, the person receiving the notice:
   8-26              (1)  shall advise the commission not later than the
   8-27  20th day after the date on which the notice is received of each
    9-1  asset belonging to the delinquent person that is possessed or
    9-2  controlled by the person receiving the notice and of each debt owed
    9-3  by the person receiving the notice to the delinquent person; and
    9-4              (2)  unless the commission consents to an earlier
    9-5  disposition, may not transfer or dispose of the asset or debt
    9-6  possessed, controlled, or owed by the person receiving the notice
    9-7  on the date the person received the notice during the 60-day period
    9-8  after the date of receipt of the notice.
    9-9        (b)  A notice under Section 51.042 that attempts to prohibit
   9-10  the transfer or disposition of an asset possessed or controlled by
   9-11  a bank is effective if it is delivered or mailed to the principal
   9-12  or any branch office of the bank, including the office of the bank
   9-13  at which the deposit is carried or the credit or property is held.
   9-14        (c)  A person who receives a notice under this subchapter and
   9-15  who transfers or disposes of an asset or debt in a manner that
   9-16  violates Subsection (a)(2) is liable to the commission for the
   9-17  amount of the indebtedness of the delinquent person with respect to
   9-18  whose obligation the notice was given, to the extent of the value
   9-19  of the affected asset or debt.
   9-20        Sec. 51.044.  LEVY.  (a)  At any time during the 60-day
   9-21  period provided by Section 51.043(a)(2), the commission may levy on
   9-22  the asset or debt by delivery of a notice of levy.
   9-23        (b)  On receipt of the levy notice, the person possessing the
   9-24  asset or debt shall transfer the asset to the commission or pay to
   9-25  the commission the amount owed to the delinquent person.
   9-26        Sec. 51.045.  NOTICE EFFECT.  A notice delivered under this
   9-27  subchapter is effective:
   10-1              (1)  at the time of delivery against all property,
   10-2  rights to property, credits, and debts involving the delinquent
   10-3  person that are not, as of the date of the notice, subject to a
   10-4  preexisting lien, attachment, garnishment, or execution issued
   10-5  through a judicial process; and
   10-6              (2)  against all property, rights to property, credits,
   10-7  or debts involving the delinquent person that come into the
   10-8  possession or control of the person served with the notice during
   10-9  the 60-day period provided by Section 51.043(a)(2).
  10-10        Sec. 51.046.  DISCHARGE OF LIABILITY.  A person acting in
  10-11  accordance with the terms of a notice issued by the commission
  10-12  under this subchapter is discharged from any obligation or
  10-13  liability to the delinquent person with respect to the affected
  10-14  property, rights to property, credits, and debts of the person
  10-15  affected by compliance with the notice of freeze or levy.
  10-16        SECTION 5.  This Act takes effect September 1, 1995.
  10-17        SECTION 6.  The importance of this legislation and the
  10-18  crowded condition of the calendars in both houses create an
  10-19  emergency and an imperative public necessity that the
  10-20  constitutional rule requiring bills to be read on three several
  10-21  days in each house be suspended, and this rule is hereby suspended.