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 * * * * *