1-1  By:  Oliveira (Senate Sponsor - Sibley)               H.B. No. 1028
    1-2        (In the Senate - Received from the House April 10, 1995;
    1-3  April 11, 1995, read first time and referred to Committee on
    1-4  Economic Development; May 22, 1995, reported favorably by the
    1-5  following vote:  Yeas 10, Nays 0; May 22, 1995, sent to printer.)
    1-6                         A BILL TO BE ENTITLED
    1-7                                AN ACT
    1-8  relating to the enforcement of certain regulations regarding the
    1-9  employment of children.
   1-10        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
   1-11        SECTION 1.  Section 51.021(a), Labor Code, is amended to read
   1-12  as follows:
   1-13        (a)  The commission, or a person designated by the
   1-14  commission, may, during working hours:
   1-15              (1)  inspect a place where there is good reason to
   1-16  believe that a child is employed or has been employed within the
   1-17  last two years; and
   1-18              (2)  collect information concerning the employment of a
   1-19  child who works or within the last two years has worked at that
   1-20  place.
   1-21        SECTION 2.  Subchapter C, Chapter 51, Labor Code, is amended
   1-22  by adding Section 51.024 to read as follows:
   1-23        Sec. 51.024.  POWERS OF COMMISSION; PENALTY.  (a)  The
   1-24  commission may require reports, conduct investigations, and take
   1-25  other action it considers necessary to implement this chapter.
   1-26        (b)  In the discharge of the duties imposed by this chapter,
   1-27  a member of the commission or an authorized representative of the
   1-28  commission may administer oaths and affirmations, take depositions,
   1-29  certify official acts, and issue subpoenas to compel the attendance
   1-30  of witnesses who may be found within 100 miles of the relevant
   1-31  event and the production of books, papers, correspondence,
   1-32  memoranda, or other records considered necessary as evidence in the
   1-33  administration of this chapter.  Notwithstanding Chapter 152 or
   1-34  154, Local Government Code, or any other law of this state, the
   1-35  commission shall pay the fee of a sheriff or constable for serving
   1-36  a subpoena under this subsection from the administrative funds of
   1-37  the commission, and the comptroller shall issue a warrant for that
   1-38  fee as directed by the commission.
   1-39        (c)  In the case of contumacy or other refusal to obey a
   1-40  subpoena issued by a member of the commission or an authorized
   1-41  representative of the commission, a county court or district court
   1-42  within the jurisdiction of which the inquiry is conducted or the
   1-43  person guilty of contumacy or refusal to obey is found, resides, or
   1-44  transacts business has jurisdiction on application by the
   1-45  commission or its representative to issue to the person an order
   1-46  requiring the person to appear before a commissioner, the
   1-47  commission, or an authorized representative of the commission to
   1-48  produce evidence or give testimony regarding the matter under
   1-49  investigation.  Failure to obey the court order may be punished by
   1-50  the court as contempt.
   1-51        (d)  A person commits an offense if the person, without just
   1-52  cause, fails or refuses to obey a commission subpoena to:
   1-53              (1)  attend and testify;
   1-54              (2)  answer any lawful inquiry; or
   1-55              (3)  produce books, papers, correspondence, memoranda,
   1-56  or other records.
   1-57        (e)  An offense under Subsection (d) is punishable by a fine
   1-58  of not less than $200, by confinement for not more than 60 days, or
   1-59  by both fine and confinement.  Each day of violation constitutes a
   1-60  separate offense.
   1-61        SECTION 3.  Subchapter D, Chapter 51, Labor Code, is amended
   1-62  by adding Section 51.033 to read as follows:
   1-63        Sec. 51.033.  ADMINISTRATIVE PENALTY.  (a)  If the commission
   1-64  determines that a person who employs a child has violated this
   1-65  chapter or a rule adopted under this chapter, the commission may
   1-66  assess an administrative penalty against that person as provided by
   1-67  this section.
   1-68        (b)  The penalty for a violation may be in an amount not to
    2-1  exceed $10,000.
    2-2        (c)  The amount of the penalty shall be based on:
    2-3              (1)  the seriousness of the violation, including the
    2-4  nature, circumstances, extent, and gravity of any prohibited acts;
    2-5              (2)  the history of previous violations;
    2-6              (3)  the amount necessary to deter future violations;
    2-7              (4)  efforts to correct the violation; and
    2-8              (5)  any other matter that justice may require.
    2-9        (d)  If, after examination of a possible violation and the
   2-10  facts relating to that possible violation, the commission
   2-11  determines that a violation has occurred, the commission shall
   2-12  issue a preliminary determination that states the facts on which
   2-13  the determination is based, the fact that an administrative penalty
   2-14  is to be imposed, and the amount of the penalty.
   2-15        (e)  Not later than the 14th day after the date the report is
   2-16  issued, the commission shall give written notice of the preliminary
   2-17  determination to the person charged with the violation.  The notice
   2-18  must include a brief summary of the alleged violation and a
   2-19  statement of the amount of the recommended penalty and must inform
   2-20  the person that the person has a right to a hearing on the
   2-21  occurrence of the violation, the amount of the penalty, or both the
   2-22  occurrence of the violation and the amount of the penalty.
   2-23        (f)  Not later than the 21st day after the date on which the
   2-24  notice is mailed, the person may make a written request for a
   2-25  hearing on the occurrence of the violation, the amount of the
   2-26  penalty, or both the occurrence of the violation and the amount of
   2-27  the penalty.
   2-28        (g)  If the person requests a hearing, the commission shall
   2-29  set a hearing and give notice of the hearing to the person not
   2-30  later than the 21st day after the date a request for the hearing is
   2-31  received by the commission.  As soon as practicable, but not later
   2-32  than the 45th day after the date the hearing notice is mailed, the
   2-33  commission shall conduct the hearing.  The hearing is subject to
   2-34  the commission rules and hearings procedures used by the commission
   2-35  to determine a claim under Subtitle A, Title 4, but is not subject
   2-36  to Chapter 2001, Government Code.  The hearings examiner shall
   2-37  issue a decision.
   2-38        (h)  If it is determined after the hearing that a penalty may
   2-39  be imposed, the commission shall enter a written order to that
   2-40  effect.  The commission shall notify the person in writing of the
   2-41  decision and the amount of the penalty imposed by mailing the
   2-42  notice to the person at the person's last known address as
   2-43  reflected by commission records.  The order of the commission
   2-44  becomes final 14 days after the date of mailing, unless, within 14
   2-45  days after the date of the mailing, the hearing is reopened by
   2-46  commission order or the person files a written motion for
   2-47  rehearing.
   2-48        (i)  The notice of the commission's order must include a
   2-49  statement of the right of the person to judicial review of the
   2-50  order.
   2-51        (j)  Not later than the 30th day after the date the
   2-52  commission's final order is mailed, the person shall:
   2-53              (1)  pay the amount of the penalty;
   2-54              (2)  pay the amount of the penalty and file a petition
   2-55  for judicial review contesting the occurrence of the violation, the
   2-56  amount of the penalty, or both the occurrence of the violation and
   2-57  the amount of the penalty; or
   2-58              (3)  without paying the amount of the penalty, file a
   2-59  petition for judicial review contesting the occurrence of the
   2-60  violation, the amount of the penalty, or both the occurrence of the
   2-61  violation and the amount of the penalty.
   2-62        (k)  Within the 30-day period, a person who acts under
   2-63  Subsection (j)(3) may:
   2-64              (1)  stay enforcement of the penalty by:
   2-65                    (A)  paying the amount of the penalty to the
   2-66  court for placement in an escrow account; or
   2-67                    (B)  giving to the court a supersedeas bond
   2-68  approved by the court that is for the amount of the penalty and
   2-69  that is effective until all judicial review of the commission's
   2-70  order is final; or
    3-1              (2)  request the court to stay enforcement of the
    3-2  penalty by:
    3-3                    (A)  filing with the court a sworn affidavit of
    3-4  the person stating that the person is financially unable to pay the
    3-5  amount of the penalty and is financially unable to give the
    3-6  supersedeas bond; and
    3-7                    (B)  giving a copy of the affidavit to the
    3-8  commission by certified mail.
    3-9        (l)  If the commission receives a copy of an affidavit under
   3-10  Subsection (k)(2), the commission may file with the court not later
   3-11  than the fifth day after the date the copy is received a contest to
   3-12  the affidavit.  The court shall hold a hearing on the facts alleged
   3-13  in the affidavit as soon as practicable and shall stay the
   3-14  enforcement of the penalty on finding that the alleged facts are
   3-15  true.  The person who files an affidavit has the burden of proving
   3-16  that the person is financially unable to pay the amount of the
   3-17  penalty and to give a supersedeas bond.
   3-18        (m)  If the person does not pay the amount of the penalty and
   3-19  the enforcement of the penalty is not stayed, the commission may
   3-20  refer the matter to the attorney general for collection of the
   3-21  amount of the penalty.
   3-22        (n)  Judicial review of the order of the commission:
   3-23              (1)  is instituted by bringing an action as provided by
   3-24  Subchapter E, Chapter 212; and
   3-25              (2)  is under the substantial evidence rule.
   3-26        (o)  If the court sustains the occurrence of the violation,
   3-27  the court may uphold or reduce the amount of the penalty and order
   3-28  the person to pay the full or reduced amount of the penalty.  If
   3-29  the court does not sustain the occurrence of the violation, the
   3-30  court shall order that a penalty is not owed.
   3-31        (p)  When the judgment of the court becomes final, the court
   3-32  shall proceed under this subsection.  If the person paid the amount
   3-33  of the penalty and if that amount is reduced or is not upheld by
   3-34  the court, the court shall order that the appropriate amount plus
   3-35  accrued interest be remitted to the person.  The rate of the
   3-36  interest is the rate charged on loans to depository institutions by
   3-37  the New York Federal Reserve Bank, and the interest shall be paid
   3-38  for the period beginning on the date the penalty was paid and
   3-39  ending on the date the penalty is remitted.  If the person gave a
   3-40  supersedeas bond and if the amount of the penalty is not upheld by
   3-41  the court, the court shall order the release of the bond.  If the
   3-42  person gave a supersedeas bond and if the amount of the penalty is
   3-43  reduced, the court shall order the release of the bond after the
   3-44  person pays the amount.
   3-45        (q)  The attorney general may bring a suit in a district
   3-46  court in Travis County to enforce a final order from which an
   3-47  appeal under this chapter has not been taken.  In the suit and on
   3-48  the request of the attorney general, the court may order payment of
   3-49  attorney's fees and other costs of court.
   3-50        (r)  A penalty collected under this section shall be remitted
   3-51  to the comptroller for deposit in the general revenue fund.
   3-52        SECTION 4.  Chapter 51, Labor Code, is amended by adding
   3-53  Subchapter E to read as follows:
   3-54                 SUBCHAPTER E.  COLLECTION OF PENALTY
   3-55        Sec. 51.041.  DEFINITION.  In this subchapter, "asset" means:
   3-56                  (1)  a credit, bank, or savings account or deposit;
   3-57  or
   3-58              (2)  any other intangible or personal property.
   3-59        Sec. 51.042.  NOTICE OF DELINQUENCY.  (a)  If, under a final
   3-60  order, a person is determined to be delinquent in the payment of
   3-61  any amount, including penalties, interest, or other amounts due
   3-62  under this chapter, the commission may notify personally or by mail
   3-63  any other person who:
   3-64              (1)  possesses or controls an asset belonging to the
   3-65  delinquent person; or
   3-66              (2)  owes a debt to the delinquent person.
   3-67        (b)  A notice under this section to a state officer,
   3-68  department, or agency must be given before the officer, department,
   3-69  or agency presents to the comptroller the claim of the delinquent
   3-70  person.
    4-1        (c)  A notice under this section may be given at any time
    4-2  after the amount due under this chapter becomes delinquent.  The
    4-3  notice must state the amount of wages, penalties, interest, or
    4-4  other amounts due, and any additional amount that will accrue by
    4-5  operation of law in a period not to exceed 30 days after the date
    4-6  on which the notice is given and, in the case of a credit, bank, or
    4-7  savings account or deposit, is effective only up to that amount.
    4-8        Sec. 51.043.  DUTIES OF NOTICE RECIPIENT.  (a)  On receipt of
    4-9  a notice under Section 51.042, the person receiving the notice:
   4-10              (1)  shall advise the commission not later than the
   4-11  20th day after the date on which the notice is received of each
   4-12  asset belonging to the delinquent person that is possessed or
   4-13  controlled by the person receiving the notice and of each debt owed
   4-14  by the person receiving the notice to the delinquent person; and
   4-15              (2)  unless the commission consents to an earlier
   4-16  disposition, may not transfer or dispose of the asset or debt
   4-17  possessed, controlled, or owed by the person receiving the notice
   4-18  on the date the person received the notice during the 60-day period
   4-19  after the date of receipt of the notice.
   4-20        (b)  A notice under Section 51.042 that attempts to prohibit
   4-21  the transfer or disposition of an asset possessed or controlled by
   4-22  a bank is effective if it is delivered or mailed to the principal
   4-23  or any branch office of the bank, including the office of the bank
   4-24  at which the deposit is carried or the credit or property is held.
   4-25        (c)  A person who receives a notice under this subchapter and
   4-26  who transfers or disposes of an asset or debt in a manner that
   4-27  violates Subsection (a)(2) is liable to the commission for the
   4-28  amount of the indebtedness of the delinquent person with respect to
   4-29  whose obligation the notice was given, to the extent of the value
   4-30  of the affected asset or debt.
   4-31        Sec. 51.044.  LEVY.  (a)  At any time during the 60-day
   4-32  period provided by Section 51.043(a)(2), the commission may levy on
   4-33  the asset or debt by delivery of a notice of levy.
   4-34        (b)  On receipt of the levy notice, the person possessing the
   4-35  asset or debt shall transfer the asset to the commission or pay to
   4-36  the commission the amount owed to the delinquent person.
   4-37        Sec. 51.045.  NOTICE EFFECT.  A notice delivered under this
   4-38  subchapter is effective:
   4-39              (1)  at the time of delivery against all property,
   4-40  rights to property, credits, and debts involving the delinquent
   4-41  person that are not, as of the date of the notice, subject to a
   4-42  preexisting lien, attachment, garnishment, or execution issued
   4-43  through a judicial process; and
   4-44              (2)  against all property, rights to property, credits,
   4-45  or debts involving the delinquent person that come into the
   4-46  possession or control of the person served with the notice during
   4-47  the 60-day period provided by Section 51.043(a)(2).
   4-48        Sec. 51.046.  DISCHARGE OF LIABILITY.  A person acting in
   4-49  accordance with the terms of a notice issued by the commission
   4-50  under this subchapter is discharged from any obligation or
   4-51  liability to the delinquent person with respect to the affected
   4-52  property, rights to property, credits, and debts of the person
   4-53  affected by compliance with the notice of freeze or levy.
   4-54        SECTION 5.  This Act takes effect September 1, 1995.
   4-55        SECTION 6.  The importance of this legislation and the
   4-56  crowded condition of the calendars in both houses create an
   4-57  emergency and an imperative public necessity that the
   4-58  constitutional rule requiring bills to be read on three several
   4-59  days in each house be suspended, and this rule is hereby suspended.
   4-60                               * * * * *