By Oliveira H.B. No. 1028
74R1800 PB-F
A BILL TO BE ENTITLED
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 or has been employed; and
1-11 (2) collect information concerning the employment of a
1-12 child who works or has worked at that place.
1-13 SECTION 2. Subchapter C, Chapter 51, Labor Code, is amended
1-14 by adding Section 51.024 to read as follows:
1-15 Sec. 51.024. POWERS OF COMMISSION; PENALTY. (a) The
1-16 commission may require reports, conduct investigations, and take
1-17 other action it considers necessary to implement this chapter.
1-18 (b) In the discharge of the duties imposed by this chapter,
1-19 a member of the commission or an authorized representative of the
1-20 commission may administer oaths and affirmations, take depositions,
1-21 certify official acts, and issue subpoenas to compel the attendance
1-22 of witnesses and the production of books, papers, correspondence,
1-23 memoranda, or other records considered necessary as evidence in the
1-24 administration of this chapter. Notwithstanding Chapter 152 or
2-1 154, Local Government Code, or any other law of this state, the
2-2 commission shall pay the fee of a sheriff or constable for serving
2-3 a subpoena under this subsection from the administrative funds of
2-4 the commission, and the comptroller shall issue a warrant for that
2-5 fee as directed by the commission.
2-6 (c) In the case of contumacy or other refusal to obey a
2-7 subpoena issued by a member of the commission or an authorized
2-8 representative of the commission, a county court or district court
2-9 within the jurisdiction of which the inquiry is conducted or the
2-10 person guilty of contumacy or refusal to obey is found, resides, or
2-11 transacts business has jurisdiction on application by the
2-12 commission or its representative to issue to the person an order
2-13 requiring the person to appear before a commissioner, the
2-14 commission, or an authorized representative of the commission to
2-15 produce evidence or give testimony regarding the matter under
2-16 investigation. Failure to obey the court order may be punished by
2-17 the court as contempt.
2-18 (d) A person commits an offense if the person, without just
2-19 cause, fails or refuses to obey a commission subpoena to:
2-20 (1) attend and testify;
2-21 (2) answer any lawful inquiry; or
2-22 (3) produce books, papers, correspondence, memoranda,
2-23 or other records.
2-24 (e) An offense under Subsection (d) is punishable by a fine
2-25 of not less than $200, by confinement for not more than 60 days, or
2-26 by both fine and confinement. Each day of violation constitutes a
2-27 separate offense.
3-1 SECTION 3. Subchapter D, Chapter 51, Labor Code, is amended
3-2 by adding Section 51.033 to read as follows:
3-3 Sec. 51.033. ADMINISTRATIVE PENALTY. (a) If the commission
3-4 determines that a person who employs a child has violated this
3-5 chapter or a rule adopted under this chapter, the commission may
3-6 assess an administrative penalty against that person as provided by
3-7 this section.
3-8 (b) The penalty for a violation may be in an amount not to
3-9 exceed $10,000.
3-10 (c) The amount of the penalty shall be based on:
3-11 (1) the seriousness of the violation, including the
3-12 nature, circumstances, extent, and gravity of any prohibited acts;
3-13 (2) the history of previous violations;
3-14 (3) the amount necessary to deter future violations;
3-15 (4) efforts to correct the violation; and
3-16 (5) any other matter that justice may require.
3-17 (d) If, after examination of a possible violation and the
3-18 facts relating to that possible violation, the commission
3-19 determines that a violation has occurred, the commission shall
3-20 issue a preliminary determination that states the facts on which
3-21 the determination is based, the fact that an administrative penalty
3-22 is to be imposed, and the amount of the penalty.
3-23 (e) Not later than the 14th day after the date the report is
3-24 issued, the commission shall give written notice of the preliminary
3-25 determination to the person charged with the violation. The notice
3-26 must include a brief summary of the alleged violation and a
3-27 statement of the amount of the recommended penalty and must inform
4-1 the person that the person has a right to a hearing on the
4-2 occurrence of the violation, the amount of the penalty, or both the
4-3 occurrence of the violation and the amount of the penalty.
4-4 (f) Not later than the 21st day after the date on which the
4-5 notice is mailed, the person may make a written request for a
4-6 hearing on the occurrence of the violation, the amount of the
4-7 penalty, or both the occurrence of the violation and the amount of
4-8 the penalty.
4-9 (g) If the person requests a hearing, the commission shall
4-10 set a hearing and give notice of the hearing to the person not
4-11 later than the 21st day after the date a request for the hearing is
4-12 received by the commission. As soon as practicable, but not later
4-13 than the 45th day after the date the hearing notice is mailed, the
4-14 commission shall conduct the hearing. The hearing is subject to
4-15 the commission rules and hearings procedures used by the commission
4-16 to determine a claim under Subtitle A, Title 4, but is not subject
4-17 to Chapter 2001, Government Code. The hearings examiner shall
4-18 issue a decision.
4-19 (h) If it is determined after the hearing that a penalty may
4-20 be imposed, the commission shall enter a written order to that
4-21 effect. The commission shall notify the person in writing of the
4-22 decision and the amount of the penalty imposed by mailing the
4-23 notice to the person at the person's last known address as
4-24 reflected by commission records. The order of the commission
4-25 becomes final 14 days after the date of mailing, unless, within 14
4-26 days after the date of the mailing, the hearing is reopened by
4-27 commission order or the person files a written motion for
5-1 rehearing.
5-2 (i) The notice of the commission's order must include a
5-3 statement of the right of the person to judicial review of the
5-4 order.
5-5 (j) Not later than the 30th day after the date the
5-6 commission's final order is mailed, the person shall:
5-7 (1) pay the amount of the penalty;
5-8 (2) pay the amount of the penalty and file a petition
5-9 for judicial review contesting the occurrence of the violation, the
5-10 amount of the penalty, or both the occurrence of the violation and
5-11 the amount of the penalty; or
5-12 (3) without paying the amount of the penalty, file a
5-13 petition for judicial review contesting the occurrence of the
5-14 violation, the amount of the penalty, or both the occurrence of the
5-15 violation and the amount of the penalty.
5-16 (k) Within the 30-day period, a person who acts under
5-17 Subsection (j)(3) may:
5-18 (1) stay enforcement of the penalty by:
5-19 (A) paying the amount of the penalty to the
5-20 court for placement in an escrow account; or
5-21 (B) giving to the court a supersedeas bond
5-22 approved by the court that is for the amount of the penalty and
5-23 that is effective until all judicial review of the commission's
5-24 order is final; or
5-25 (2) request the court to stay enforcement of the
5-26 penalty by:
5-27 (A) filing with the court a sworn affidavit of
6-1 the person stating that the person is financially unable to pay the
6-2 amount of the penalty and is financially unable to give the
6-3 supersedeas bond; and
6-4 (B) giving a copy of the affidavit to the
6-5 commission by certified mail.
6-6 (l) If the commission receives a copy of an affidavit under
6-7 Subsection (k)(2), the commission may file with the court not later
6-8 than the fifth day after the date the copy is received a contest to
6-9 the affidavit. The court shall hold a hearing on the facts alleged
6-10 in the affidavit as soon as practicable and shall stay the
6-11 enforcement of the penalty on finding that the alleged facts are
6-12 true. The person who files an affidavit has the burden of proving
6-13 that the person is financially unable to pay the amount of the
6-14 penalty and to give a supersedeas bond.
6-15 (m) If the person does not pay the amount of the penalty and
6-16 the enforcement of the penalty is not stayed, the commission may
6-17 refer the matter to the attorney general for collection of the
6-18 amount of the penalty.
6-19 (n) Judicial review of the order of the commission:
6-20 (1) is instituted by bringing an action as provided by
6-21 Subchapter E, Chapter 212; and
6-22 (2) is under the substantial evidence rule.
6-23 (o) If the court sustains the occurrence of the violation,
6-24 the court may uphold or reduce the amount of the penalty and order
6-25 the person to pay the full or reduced amount of the penalty. If
6-26 the court does not sustain the occurrence of the violation, the
6-27 court shall order that a penalty is not owed.
7-1 (p) When the judgment of the court becomes final, the court
7-2 shall proceed under this subsection. If the person paid the amount
7-3 of the penalty and if that amount is reduced or is not upheld by
7-4 the court, the court shall order that the appropriate amount plus
7-5 accrued interest be remitted to the person. The rate of the
7-6 interest is the rate charged on loans to depository institutions by
7-7 the New York Federal Reserve Bank, and the interest shall be paid
7-8 for the period beginning on the date the penalty was paid and
7-9 ending on the date the penalty is remitted. If the person gave a
7-10 supersedeas bond and if the amount of the penalty is not upheld by
7-11 the court, the court shall order the release of the bond. If the
7-12 person gave a supersedeas bond and if the amount of the penalty is
7-13 reduced, the court shall order the release of the bond after the
7-14 person pays the amount.
7-15 (q) The attorney general may bring a suit in a district
7-16 court in Travis County to enforce a final order from which an
7-17 appeal under this chapter has not been taken. In the suit and on
7-18 the request of the attorney general, the court may order payment of
7-19 attorney's fees and other costs of court.
7-20 (r) A penalty collected under this section shall be remitted
7-21 to the comptroller for deposit in the general revenue fund.
7-22 SECTION 4. Chapter 51, Labor Code, is amended by adding
7-23 Subchapter E to read as follows:
7-24 SUBCHAPTER E. COLLECTION OF PENALTY
7-25 Sec. 51.041. DEFINITION. In this subchapter, "asset" means:
7-26 (1) a credit, bank, or savings account or deposit;
7-27 or
8-1 (2) any other intangible or personal property.
8-2 Sec. 51.042. NOTICE OF DELINQUENCY. (a) If, under a final
8-3 order, a person is determined to be delinquent in the payment of
8-4 any amount, including penalties, interest, or other amounts due
8-5 under this chapter, the commission may notify personally or by mail
8-6 any other person who:
8-7 (1) possesses or controls an asset belonging to the
8-8 delinquent person; or
8-9 (2) owes a debt to the delinquent person.
8-10 (b) A notice under this section to a state officer,
8-11 department, or agency must be given before the officer, department,
8-12 or agency presents to the comptroller the claim of the delinquent
8-13 person.
8-14 (c) A notice under this section may be given at any time
8-15 after the amount due under this chapter becomes delinquent. The
8-16 notice must state the amount of wages, penalties, interest, or
8-17 other amounts due, and any additional amount that will accrue by
8-18 operation of law in a period not to exceed 30 days after the date
8-19 on which the notice is given and, in the case of a credit, bank, or
8-20 savings account or deposit, is effective only up to that amount.
8-21 Sec. 51.043. DUTIES OF NOTICE RECIPIENT. (a) On receipt of
8-22 a notice under Section 51.042, the person receiving the notice:
8-23 (1) shall advise the commission not later than the
8-24 20th day after the date on which the notice is received of each
8-25 asset belonging to the delinquent person that is possessed or
8-26 controlled by the person receiving the notice and of each debt owed
8-27 by the person receiving the notice to the delinquent person; and
9-1 (2) unless the commission consents to an earlier
9-2 disposition, may not transfer or dispose of the asset or debt
9-3 possessed, controlled, or owed by the person receiving the notice
9-4 on the date the person received the notice during the 60-day period
9-5 after the date of receipt of the notice.
9-6 (b) A notice under Section 51.042 that attempts to prohibit
9-7 the transfer or disposition of an asset possessed or controlled by
9-8 a bank is effective if it is delivered or mailed to the principal
9-9 or any branch office of the bank, including the office of the bank
9-10 at which the deposit is carried or the credit or property is held.
9-11 (c) A person who receives a notice under this subchapter and
9-12 who transfers or disposes of an asset or debt in a manner that
9-13 violates Subsection (a)(2) is liable to the commission for the
9-14 amount of the indebtedness of the delinquent person with respect to
9-15 whose obligation the notice was given, to the extent of the value
9-16 of the affected asset or debt.
9-17 Sec. 51.044. LEVY. (a) At any time during the 60-day
9-18 period provided by Section 51.043(a)(2), the commission may levy on
9-19 the asset or debt by delivery of a notice of levy.
9-20 (b) On receipt of the levy notice, the person possessing the
9-21 asset or debt shall transfer the asset to the commission or pay to
9-22 the commission the amount owed to the delinquent person.
9-23 Sec. 51.045. NOTICE EFFECT. A notice delivered under this
9-24 subchapter is effective:
9-25 (1) at the time of delivery against all property,
9-26 rights to property, credits, and debts involving the delinquent
9-27 person that are not, as of the date of the notice, subject to a
10-1 preexisting lien, attachment, garnishment, or execution issued
10-2 through a judicial process; and
10-3 (2) against all property, rights to property, credits,
10-4 or debts involving the delinquent person that come into the
10-5 possession or control of the person served with the notice during
10-6 the 60-day period provided by Section 51.043(a)(2).
10-7 Sec. 51.046. DISCHARGE OF LIABILITY. A person acting in
10-8 accordance with the terms of a notice issued by the commission
10-9 under this subchapter is discharged from any obligation or
10-10 liability to the delinquent person with respect to the affected
10-11 property, rights to property, credits, and debts of the person
10-12 affected by compliance with the notice of freeze or levy.
10-13 SECTION 5. This Act takes effect September 1, 1995.
10-14 SECTION 6. The importance of this legislation and the
10-15 crowded condition of the calendars in both houses create an
10-16 emergency and an imperative public necessity that the
10-17 constitutional rule requiring bills to be read on three several
10-18 days in each house be suspended, and this rule is hereby suspended.