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 * * * * *