1-1 By: Van de Putte (Senate Sponsor - Madla) H.B. No. 1506
1-2 (In the Senate - Received from the House April 21, 1995;
1-3 April 24, 1995, read first time and referred to Committee on Health
1-4 and Human Services; May 3, 1995, reported favorably by the
1-5 following vote: Yeas 8, Nays 0; May 3, 1995, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to the authority of the Texas State Board of Pharmacy to
1-9 impose administrative penalties.
1-10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-11 SECTION 1. Subsections (d)-(s), Section 28B, Texas Pharmacy
1-12 Act (Article 4542a-1, Vernon's Texas Civil Statutes), are amended
1-13 to read as follows:
1-14 (d) The board by rule shall prescribe procedures, consistent
1-15 with the provisions of Chapter 2001, Government Code, relating to
1-16 contested cases, by which the board may impose an administrative
1-17 penalty <executive director, or staff designee, on determination
1-18 that a violation has occurred may issue to the board a report that
1-19 states the facts on which the determination is based and the
1-20 director's recommendation on the imposition of a penalty, including
1-21 a recommendation on the amount of the penalty>.
1-22 (e) If the board by order finds that a violation has
1-23 occurred and imposes an administrative penalty, the board shall
1-24 give notice to the person of the board's order. The notice must
1-25 include a statement of the right of the person to judicial review
1-26 of the order. <Within 14 days after the date the report is
1-27 approved by the board and issued, the executive director shall give
1-28 written notice of the report to the person. The notice may be
1-29 given by certified mail. The notice must include a brief summary
1-30 of the alleged violation and a statement of the amount of the
1-31 recommended penalty and must inform the person that the person has
1-32 a right to a hearing on the occurrence of the violation, the amount
1-33 of the penalty, or both the occurrence of the violation and the
1-34 amount of the penalty.>
1-35 <(f) Within 20 days after the date the person receives the
1-36 notice, the person in writing may accept the determination and
1-37 recommended penalty of the executive director or may make a written
1-38 request for a hearing on the occurrence of the violation, the
1-39 amount of the penalty, or both the occurrence of the violation and
1-40 the amount of the penalty.>
1-41 <(g) If the person accepts the determination and recommended
1-42 penalty of the executive director, the board by order shall approve
1-43 the determination and impose the recommended penalty.>
1-44 <(h) If the person requests a hearing or fails to respond
1-45 timely to the notice, the executive director shall set a hearing
1-46 and give notice of the hearing to the person. The hearing shall be
1-47 held by the board, except that a hearing involving the diversion of
1-48 controlled substances shall be held by an administrative law judge
1-49 of the State Office of Administrative Hearings. The board or the
1-50 administrative law judge, as appropriate, shall make findings of
1-51 fact and conclusions of law and, if the hearing is held by an
1-52 administrative law judge, the judge promptly shall issue to the
1-53 board a proposal for a decision about the occurrence of the
1-54 violation and the amount of a proposed penalty. Based on the
1-55 findings of fact, conclusions of law, and any proposal for a
1-56 decision, the board by order may find that a violation has occurred
1-57 and impose a penalty or may find that no violation occurred.>
1-58 <(i) The notice of the board's order given to the person
1-59 under the Administrative Procedure and Texas Register Act (Article
1-60 6252-13a, Vernon's Texas Civil Statutes) and its subsequent
1-61 amendments must include a statement of the right of the person to
1-62 judicial review of the order.>
1-63 (f) <(j)> Within 30 days after the date the board's order is
1-64 final as provided by Section 2001.144, Government Code <16(c),
1-65 Administrative Procedure and Texas Register Act (Article 6252-13a,
1-66 Vernon's Texas Civil Statutes), and its subsequent amendments>, the
1-67 person shall:
1-68 (1) pay the amount of the penalty;
2-1 (2) pay the amount of the penalty and file a petition
2-2 for judicial review contesting the occurrence of the violation, the
2-3 amount of the penalty, or both the occurrence of the violation and
2-4 the amount of the penalty; or
2-5 (3) without paying the amount of the penalty, file a
2-6 petition for judicial review contesting the occurrence of the
2-7 violation, the amount of the penalty, or both the occurrence of the
2-8 violation and the amount of the penalty.
2-9 (g) <(k)> Within the 30-day period, a person who acts under
2-10 Subsection (f)(3) <(j)(3)> of this section may:
2-11 (1) stay enforcement of the penalty by:
2-12 (A) paying the amount of the penalty to the
2-13 court for placement in an escrow account; or
2-14 (B) giving to the court a supersedeas bond
2-15 approved by the court for the amount of the penalty and that is
2-16 effective until all judicial review of the board's order is final;
2-17 or
2-18 (2) request the court to stay enforcement of the
2-19 penalty by:
2-20 (A) filing with the court a sworn affidavit of
2-21 the person stating that the person is financially unable to pay the
2-22 amount of the penalty and is financially unable to give the
2-23 supersedeas bond; and
2-24 (B) giving a copy of the affidavit to the
2-25 executive director by certified mail.
2-26 (h) <(l)> An executive director who receives a copy of an
2-27 affidavit under Subsection (g)(2) <(k)(2)> of this section may file
2-28 with the court, within five days after the date the copy is
2-29 received, a contest to the affidavit. The court shall hold a
2-30 hearing on the facts alleged in the affidavit as soon as
2-31 practicable and shall stay the enforcement of the penalty on
2-32 finding that the alleged facts are true. The person who files an
2-33 affidavit has the burden of proving that the person is financially
2-34 unable to pay the amount of the penalty and to give a supersedeas
2-35 bond.
2-36 (i) <(m)> If the person does not pay the amount of the
2-37 penalty and the enforcement of the penalty is not stayed, the
2-38 executive director may refer the matter to the attorney general for
2-39 collection of the amount of the penalty.
2-40 <(n) Judicial review of the order of the board:>
2-41 <(1) is instituted by filing a petition as provided by
2-42 Section 19, Administrative Procedure and Texas Register Act
2-43 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
2-44 subsequent amendments; and>
2-45 <(2) is under the substantial evidence rule.>
2-46 (j) <(o)> If the court sustains the occurrence of the
2-47 violation on appeal, the court may uphold or reduce the amount of
2-48 the penalty and order the person to pay the full or reduced amount
2-49 of the penalty. If the court does not sustain the occurrence of
2-50 the violation, the court shall order that no penalty is owed.
2-51 (k) <(p)> When the judgment of the court becomes final, the
2-52 court shall proceed under this subsection. If the person paid the
2-53 amount of the penalty and if that amount is reduced or is not
2-54 upheld by the court, the court shall order that the appropriate
2-55 amount plus accrued interest be remitted to the person. The rate
2-56 of the interest is the rate charged on loans to depository
2-57 institutions by the New York Federal Reserve Bank, and the interest
2-58 shall be paid for the period beginning on the date the penalty was
2-59 paid and ending on the date the penalty is remitted. If the person
2-60 gave a supersedeas bond and if the amount of the penalty is not
2-61 upheld by the court, the court shall order the release of the bond.
2-62 If the person gave a supersedeas bond and if the amount of the
2-63 penalty is reduced, the court shall order the release of the bond
2-64 after the person pays the amount.
2-65 (l) <(q)> A penalty collected under this section shall be
2-66 remitted to the comptroller for deposit in the general revenue
2-67 fund.
2-68 (m) <(r)> All proceedings under this section are subject to
2-69 Chapter 2001, Government Code <the Administrative Procedure and
2-70 Texas Register Act (Article 6252-13a, Vernon's Texas Civil
3-1 Statutes) and its subsequent amendments>.
3-2 (n) <(s)> This section does not limit the ability of the
3-3 board to impose an administrative penalty pursuant to a consent
3-4 order entered in accordance with board rules and requirements of
3-5 Section 17D of this Act.
3-6 SECTION 2. This Act takes effect September 1, 1995.
3-7 SECTION 3. The importance of this legislation and the
3-8 crowded condition of the calendars in both houses create an
3-9 emergency and an imperative public necessity that the
3-10 constitutional rule requiring bills to be read on three several
3-11 days in each house be suspended, and this rule is hereby suspended.
3-12 * * * * *