By Van de Putte                                       H.B. No. 1888
       74R1308 CAG-F
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to the regulation of lead-based paint activities and
    1-3  hazards; providing civil, administrative, and criminal penalties.
    1-4        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-5        SECTION 1.  Chapter 4A, Title 71, Revised Statutes, is
    1-6  amended by adding Article 4477-3b to read as follows:
    1-7        Art. 4477-3b.  LEAD-BASED PAINT ACTIVITIES AND HAZARDS
    1-8        Sec. 1.  DEFINITIONS.  In this article:
    1-9              (1)  "Abatement" means any set of measures designed to
   1-10  permanently eliminate lead-based paint hazards in accordance with
   1-11  the rules of the department.  The term does not include renovation,
   1-12  remodeling, or landscape activity the primary purpose of which is
   1-13  to repair, restore, or remodel a structure or dwelling, even if the
   1-14  activity may incidentally result in the reduction of a lead-based
   1-15  paint hazard.  The term includes:
   1-16                    (A)  the removal of lead-based paint or
   1-17  lead-contaminated dust, the permanent containment or encapsulation
   1-18  of lead-based paint, the replacement of lead-painted surfaces or
   1-19  fixtures, and the removal or covering of lead-contaminated soil;
   1-20                    (B)  the preparation, cleanup, disposal, and
   1-21  post-abatement clearance testing of an activity associated with
   1-22  Paragraph (A); and
   1-23                    (C)  a project designed to:
   1-24                          (i)  eliminate a lead-based paint hazard in
    2-1  a dwelling unit using a method described in Paragraph (A) and for
    2-2  which there is a written contract;
    2-3                          (ii)  permanently eliminate lead-based
    2-4  paint or lead-contaminated soil and that is conducted by a person
    2-5  certified under this article or by a person who holds the person
    2-6  out to be a lead abatement professional.
    2-7              (2)  "Accredited training program" means a training
    2-8  program accredited and certified by the department.
    2-9              (3)  "Board" means the Texas Board of Health.
   2-10              (4)  "Certified contractor" means a contractor,
   2-11  inspector, or supervisor who has completed a training program
   2-12  certified by the department and who has met any other requirement
   2-13  for certification set by the department.
   2-14              (5)  "Certified firm" means a person certified by the
   2-15  department that has submitted to the department a letter signed by
   2-16  the owner of the firm stating that:
   2-17                    (A)  all employees or subcontractors of the firm
   2-18  performing lead-based paint activity are certified by the
   2-19  department to perform that activity;
   2-20                    (B)  the firm shall, in performing a lead-based
   2-21  paint activity, comply with applicable federal, state, and local
   2-22  regulations or standards;
   2-23                    (C)  the firm shall comply with any other rules
   2-24  of the department;
   2-25                    (D)  the firm shall assign a certified supervisor
   2-26  to be available for all the firm's abatement, deleading, and
   2-27  demolition projects; and
    3-1                    (E)  the firm meets all other requirements of the
    3-2  department.
    3-3              (6)  "Certified inspector" means a person who has been
    3-4  certified by the department to act as an inspector.
    3-5              (7)  "Certified lead worker" means a person who has
    3-6  been certified by the department to perform abatement, deleading,
    3-7  demolition, lead removal, or other lead-based paint activity.
    3-8              (8)  "Certified project designer" means a person
    3-9  certified by the department to plan and design abatement projects
   3-10  in target housing, commercial buildings, or public buildings.
   3-11              (9)  "Certified supervisor" means a person certified by
   3-12  the department to supervise lead-based paint activities or the
   3-13  removal of lead-based paint hazards.
   3-14              (10)  "Commercial building" means any building
   3-15  primarily used for commercial or industrial activity that is
   3-16  generally not open to the public or occupied by or visited by
   3-17  children, including a warehouse, factory, storage facility,
   3-18  aircraft hangar, garage, or wholesale distribution facility.
   3-19              (11)  "Commissioner" means the commissioner of health.
   3-20              (12)  "Deleading" means an activity conducted by a
   3-21  person who offers to eliminate or plans to eliminate lead-based
   3-22  paint or lead-based paint hazards.
   3-23              (13)  "Demolition" means the pulling down or
   3-24  destruction of a structure or building containing lead-based paint
   3-25  or lead-based paint hazards.
   3-26              (14)  "Department" means the Texas Department of
   3-27  Health.
    4-1              (15)  "Encapsulation" means a process approved by the
    4-2  department that makes lead-based paint inaccessible by providing a
    4-3  barrier between the lead-based paint and the environment.
    4-4              (16)  "Inspection" means a surface-by-surface
    4-5  investigation for the presence of lead-based paint conducted by a
    4-6  certified inspector.
    4-7              (17)  "Lead-based paint activities" means:
    4-8                    (A)  in the case of target housing:
    4-9                          (i)  risk assessment;
   4-10                          (ii)  inspection; and
   4-11                          (iii)  abatement; and
   4-12                    (B)  in the case of any public building,
   4-13  including  a commercial building, bridge, or other structure,
   4-14  constructed before 1978:
   4-15                          (i)  identification of lead-based paint and
   4-16  materials containing lead-based paint;
   4-17                          (ii)  deleading;
   4-18                          (iii)  removal of lead from bridges; and
   4-19                          (iv)  demolition.
   4-20              (18)  "Lead-based paint hazards" includes any condition
   4-21  that causes exposure to lead from lead-contaminated dust,
   4-22  lead-contaminated soil, or lead-based paint that is deteriorated or
   4-23  present in accessible surfaces for a child to mouth or chew or that
   4-24  would be subject to abrasion, friction, or damage by repeated
   4-25  impacts that would result in human health effects as determined by
   4-26  the department.
   4-27              (19)  "Lead-contaminated soil" means bare soil on
    5-1  residential real property that contains lead at or in excess of the
    5-2  level determined to be hazardous by a certified inspector applying
    5-3  the regulations of the department.
    5-4              (20)  "Person" means:
    5-5                    (A)  an individual;
    5-6                    (B)  an organization, including a corporation,
    5-7  partnership, sole proprietorship, governmental subdivision, or
    5-8  agency;  or
    5-9                    (C)  any other legal entity recognized by law as
   5-10  having rights and duties.
   5-11              (21)  "Personal protection equipment" means clothing or
   5-12  equipment designed to protect workers against physical or chemical
   5-13  hazards, including respirators, gloves, or masks.
   5-14              (22)  "Public building" means any building constructed
   5-15  before 1978, except target housing, that is open to the public or
   5-16  is occupied by or visited by children, including schools, day-care
   5-17  centers, museums, airport terminals, hospitals, retail stores,
   5-18  restaurants, office buildings, convention centers, and government
   5-19  buildings.
   5-20              (23)  "Recognized laboratory" means an environmental
   5-21  laboratory recognized by the department as being capable of
   5-22  performing an analysis for lead compounds in paint, soil, and dust.
   5-23              (24)  "Residential dwelling" means:
   5-24                    (A)  a single-family dwelling, including an
   5-25  attached structure; or
   5-26                    (B)  a single-family dwelling unit in a structure
   5-27  that contains more than one separate residential dwelling unit that
    6-1  is used or occupied, or intended to be used or occupied, as the
    6-2  home or residence of one or more persons.
    6-3              (25)  "Risk assessment" means an on-site investigation
    6-4  conducted by a certified inspector according to procedures
    6-5  determined by the department to determine the existence, nature,
    6-6  severity, and location of lead-based paint hazards and the
    6-7  provision of a report to the property owner or occupant of the
    6-8  results of the investigation and options for reducing lead-based
    6-9  paint hazards.
   6-10              (26)  "Target housing" means any housing constructed
   6-11  before 1978, except housing for the elderly or a person with a
   6-12  disability, or any zero-bedroom dwelling.  The term includes
   6-13  housing for the elderly or a person with a disability if a child
   6-14  six years of age or younger resides or is expected to reside in the
   6-15  housing.
   6-16        Sec. 2.  CERTIFICATE REQUIRED.  (a)  A person may not engage
   6-17  in the following activities unless the person is certified by the
   6-18  department:
   6-19              (1)  abatement;
   6-20              (2)  deleading;
   6-21              (3)  demolition;
   6-22              (4)  encapsulation;
   6-23              (5)  inspection;
   6-24              (6)  lead-based paint activity;
   6-25              (7)  risk assessment;
   6-26              (8)  training of a certificate holder;
   6-27              (9)  supervision of a lead-based paint or abatement
    7-1  activity; or
    7-2              (10)  any other activity related to lead-based paint
    7-3  activities or lead-based paint hazards.
    7-4        (b)  The board shall determine and specify the scope,
    7-5  purpose, eligibility, qualifications, training, and compliance
    7-6  requirements for each class of certification and any other
    7-7  certification necessary for the board to carry out its duties under
    7-8  this article.
    7-9        (c)  In an emergency that results from a sudden, unexpected
   7-10  event, the department on notification may waive the requirement for
   7-11  certification.
   7-12        (d)  A person engaged in a lead-based paint activity or in
   7-13  working with another lead-based paint hazard as determined by the
   7-14  department must notify the department in writing at least 10 days
   7-15  before beginning the activity according to applicable laws. Oral
   7-16  notification may be substituted for written notification if the
   7-17  activity is an emergency.
   7-18        Sec. 3.  CERTIFICATION REQUIREMENT.  (a)  To qualify for
   7-19  certification under this article, a person must meet the
   7-20  requirements of this section and satisfy any lead-based paint
   7-21  related education, experience, or other requirement established by
   7-22  the board.
   7-23        (b)  A person engaged in any lead-based paint activity must
   7-24  ensure that each employee or agent who will come in contact with
   7-25  lead-based paint  or who will be responsible for the activity:
   7-26              (1)  is familiar with federal, state, and local
   7-27  standards for lead-based paint activity or other lead-based paint
    8-1  hazards;
    8-2              (2)  has completed the applicable course of instruction
    8-3  on lead-based paint activities and lead-based paint hazards
    8-4  developed and approved by the United States Environmental
    8-5  Protection Agency or the department under Section 11 of this
    8-6  article and taught by an accredited training program; and
    8-7              (3)  is supplied with approved personal protection
    8-8  equipment in good working order for the person's protection and for
    8-9  the protection of the public and the environment.
   8-10        (c)  The board may adopt separate educational standards to be
   8-11  taught in an accredited training program and other requirements for
   8-12  the following:
   8-13              (1)  a certified contractor;
   8-14              (2)  a certified firm;
   8-15              (3)  a certified inspector;
   8-16              (4)  a certified lead worker;
   8-17              (5)  a certified project designer;
   8-18              (6)  a certified project planner;
   8-19              (7)  a certified trainer;
   8-20              (8)  a certified training program; and
   8-21              (9)  a certified supervisor.
   8-22        (d)  The board may by rule restrict the holder of any
   8-23  certification to the performance of certain actions and may create
   8-24  subclassifications that restrict the holder of a certification to
   8-25  only certain types of activities or to work performed on certain
   8-26  types of structures.
   8-27        (e)  The board may establish standards to recognize
    9-1  environmental laboratories that are capable of performing an
    9-2  analysis for lead compounds in paint, soil, and dust.
    9-3        Sec. 4.  INSURANCE AND OTHER REQUIREMENTS.  A person must
    9-4  provide the following, if applicable, for a certificate under this
    9-5  article:
    9-6              (1)  a certificate of good standing issued by the
    9-7  secretary of state for a corporation or other business entity
    9-8  certified under this article;
    9-9              (2)  if the entity is a foreign corporation, a
   9-10  certificate from the secretary of state authorizing the corporation
   9-11  to conduct business in this state;
   9-12              (3)  a state sales tax number, if a sales tax number is
   9-13  required for the business entity; and
   9-14              (4)  a certificate of insurance, issued for the
   9-15  purposes of performing work under this article, demonstrating the
   9-16  following:
   9-17                    (A)  lead-based paint activity or other
   9-18  lead-based paint hazard liability coverage for a certified
   9-19  contractor or firm performing work for hire;
   9-20                    (B)  professional liability insurance coverage
   9-21  for errors and omissions for a certified firm, inspector, project
   9-22  designer, or a recognized laboratory performing work for hire;
   9-23                    (C)  workers' compensation insurance issued by a
   9-24  company authorized and licensed to issue workers' compensation
   9-25  insurance in this state and written in this state on the Texas form
   9-26  or evidence of self-insurance if workers' compensation insurance is
   9-27  required by the specifications or owner; and
   10-1                    (D)  liability insurance to transport
   10-2  lead-containing materials for hire for purposes of disposal.
   10-3        Sec. 5.  FEES.  A person issued a certification under Section
   10-4  3 of this article shall pay a fee set by the board. The fee shall
   10-5  be set in an amount necessary to cover the costs of administering
   10-6  this article.
   10-7        Sec. 6.  CONFLICT OF INTEREST.  A person certified under this
   10-8  article to perform inspection, risk assessment, or project design
   10-9  for a lead-based paint activity or other lead-based paint hazard
  10-10  may not also be engaged in the removal of lead-based paint,
  10-11  lead-contaminated soil, lead-contaminated dust, or other lead from
  10-12  a public building, commercial building, target housing, or other
  10-13  structure unless retained to do so by a municipality.
  10-14        Sec. 7.  APPLICATION FOR CERTIFICATION.  (a)  To receive a
  10-15  certificate, a person who wishes to engage in an activity requiring
  10-16  a certificate under Section 3 of this article shall submit an
  10-17  application to the department on the form prescribed by the
  10-18  department and pay to the department a nonrefundable application
  10-19  fee set by the board.
  10-20        (b)  The application form must be signed by the applicant and
  10-21  include any information that the department may require to meet the
  10-22  certificate requirements.
  10-23        (c)  The department may, at any time after the filing of the
  10-24  application and before the expiration of the certificate, require
  10-25  additional written information and assurances and may make any
  10-26  inspections or cause the production of any documentary or other
  10-27  evidence the department considers necessary to determine whether
   11-1  the certificate should be granted, delayed, or denied or whether
   11-2  the certificate should be modified, suspended, or revoked.
   11-3        Sec. 8.  TERMS AND RENEWAL OF CERTIFICATIONS.  (a)  A
   11-4  certificate issued under this article expires on the first
   11-5  anniversary of its effective date unless the certificate is renewed
   11-6  for a one-year term as provided by this section.
   11-7        (b)  At least one month before the certificate expires, the
   11-8  department shall send to the certificate holder, by first-class
   11-9  mail to the last known address of the certificate holder, a renewal
  11-10  notice that states:
  11-11              (1)  the date on which the current certificate expires;
  11-12              (2)  the date by which the renewal application must be
  11-13  received by the department for the renewal to be issued and mailed
  11-14  before the date the certificate expires; and
  11-15              (3)  the amount of the renewal fee.
  11-16        (c)  Before the certificate expires, the certificate holder
  11-17  may renew the certificate for an additional one-year term, if the
  11-18  certificate holder:
  11-19              (1)  is otherwise entitled to be certified;
  11-20              (2)  pays to the department a nonrefundable renewal fee
  11-21  in the amount set by the board, which may not exceed the amount set
  11-22  by the board for an original certificate under Section 7 of this
  11-23  article;
  11-24              (3)  submits to the department a renewal application on
  11-25  the form that the department requires; and
  11-26              (4)  has successfully completed any requirements for
  11-27  renewal set by the department.
   12-1        (d)  The terms and conditions of a certificate are subject to
   12-2  amendment or modification by rules or orders issued under this
   12-3  article.
   12-4        (e)  A certificate issued under this article may not be
   12-5  assigned to another person.
   12-6        (f)  A certificate holder may request a replacement
   12-7  certificate on completion of an appropriate application and payment
   12-8  of a fee set by the board.
   12-9        Sec. 9.  REQUIRED RECORDS.  (a)  A certificate holder  shall:
  12-10              (1)  keep an appropriate record or records, in the form
  12-11  and manner and containing the information required by the
  12-12  department, of each lead-based paint activity or other lead-based
  12-13  paint hazard that the certificate holder performs; and
  12-14              (2)  make the record or records available to the
  12-15  department at any reasonable time.
  12-16        (b)  The records required by this section shall be kept for
  12-17  at least as long as the department requires or as long as required
  12-18  by federal law or regulation.
  12-19        Sec. 10.  DISCIPLINARY ACTION.  (a)  After notice to the
  12-20  certificate holder and an opportunity for a hearing, the department
  12-21  may reprimand the certificate holder or modify, suspend, suspend on
  12-22  an emergency basis, or revoke a certificate issued under this
  12-23  article.
  12-24        (b)  If the department suspends a certificate on an emergency
  12-25  basis, the suspension is effective immediately.  The department
  12-26  shall then provide an opportunity for a hearing to be held not
  12-27  later than the 20th day after the date of the emergency suspension.
   13-1        (c)  The board by rule shall adopt criteria for departmental
   13-2  action under this section.
   13-3        (d)  If a certificate issued under this article has been
   13-4  revoked or suspended, the person named in the revocation is not
   13-5  eligible to reapply for a certificate under this article for a
   13-6  period of time set forth in a schedule established by board rule.
   13-7        (e)  Notice given and hearings held under this section shall
   13-8  be conducted as provided by Section 12 of this article.
   13-9        Sec. 11.  TRAINING REQUIREMENTS.  (a)  The board shall adopt
  13-10  rules for the purpose of approving the training for all persons who
  13-11  are required to be certified under this article. At a minimum, the
  13-12  rules must be sufficient to permit the department to obtain the
  13-13  authority from the United States Environmental Protection Agency to
  13-14  implement and enforce in this state Subchapter IV, Chapter 53,
  13-15  Title  15, United States Code (15 U.S.C. Section 2681 et seq.).
  13-16        (b)  The board may establish other requirements or make
  13-17  changes in the training requirements as the board determines to be
  13-18  desirable.
  13-19        (c)  Under a rule adopted by the board, unless a sponsor of
  13-20  an accredited training program is certified by the department as
  13-21  required by Section 3 of this article, the sponsor may not offer a
  13-22  course of instruction or provide certification to a course of
  13-23  instruction for the purposes of certification under this article.
  13-24        (d)  A person certified as an accredited training program may
  13-25  sponsor only courses that have been approved by the department for
  13-26  that purpose.
  13-27        (e)  An accredited training program shall furnish records to
   14-1  the department concerning persons who have attended a course of
   14-2  instruction for certification, according to the rules of the board.
   14-3        (f)  The department, after notice to an accredited training
   14-4  program  and an opportunity for a hearing, may suspend, suspend on
   14-5  an emergency basis, or revoke the approval of the course.
   14-6        (g)  If the department suspends the approval on an emergency
   14-7  basis, the suspension is effective immediately.  The department
   14-8  shall provide the accredited training program with an opportunity
   14-9  for a hearing  not later than the 20th day after the date of the
  14-10  emergency suspension.
  14-11        (h)  The board may require or may authorize the use of
  14-12  standardized examinations as a necessary or optional basis for
  14-13  certification and may set fees for the administration of the
  14-14  examinations.
  14-15        (i)  Notice given and hearings held under this section shall
  14-16  be conducted as provided by Section 12 of this article.
  14-17        Sec. 12.  ADMINISTRATIVE PROCEDURES.  The notice and hearing
  14-18  provisions contained in this article and judicial review of a final
  14-19  administrative decision shall be conducted in accordance with the
  14-20  board's rules for contested case hearings and Chapter 2001,
  14-21  Government Code.
  14-22        Sec. 13.  POWERS AND DUTIES OF BOARD AND DEPARTMENT.  (a)
  14-23  The board shall adopt rules necessary to discharge a power or duty
  14-24  of the board or department under this article.  At a minimum, the
  14-25  rules must be sufficient to permit the department to obtain
  14-26  authority from the United States Environmental Protection Agency to
  14-27  implement and enforce in this state Subchapter IV, Chapter 53,
   15-1  Title  15, United States Code (15 U.S.C. Section 2681 et seq.).
   15-2        (b)  The board shall adopt rules that specify certification
   15-3  standards and other performance standards that are at least as
   15-4  stringent as applicable federal standards and that specify work
   15-5  practices affecting lead-based paint activities and lead-based
   15-6  paint hazards.
   15-7        (c)  The board shall adopt fees as provided by this article
   15-8  and other fees that are reasonable and necessary to cover the cost
   15-9  of administering this article.
  15-10        (d)  The fees collected by the department shall be deposited
  15-11  in the state treasury to the credit of the general revenue fund and
  15-12  may be used only by the department for the purposes of this
  15-13  article. Not more than 25 percent of the money collected under this
  15-14  article may be applied for administrative costs necessary to
  15-15  implement this article. The remainder of the money shall be used
  15-16  for additional enforcement personnel necessary to investigate
  15-17  compliance with this article.
  15-18        (e)  The department may:
  15-19              (1)  develop and distribute information concerning lead
  15-20  to the public;
  15-21              (2)  conduct educational programs; and
  15-22              (3)  assemble or sponsor informational or educational
  15-23  exhibits.
  15-24        (f)  The board may adopt rules under this article regarding
  15-25  reciprocity agreements with other states.
  15-26        (g)  The board may adopt and enforce rules regarding
  15-27  abatement, demolition, deleading, and other lead-based paint
   16-1  activities  or hazards to protect the public.  At a minimum, the
   16-2  rules must be sufficient to permit the department to obtain
   16-3  authority from the United States Environmental Protection Agency to
   16-4  implement and enforce in this state Subchapter IV, Chapter 53,
   16-5  Title  15, United States Code (15 U.S.C. Section 2681 et seq.).
   16-6        Sec. 14.  TECHNICAL ADVISORY COMMITTEE.  (a)  The board shall
   16-7  appoint a nine member technical advisory committee to advise the
   16-8  board and department concerning rules, fees, courses of
   16-9  instruction, and any other topics the board and department consider
  16-10  necessary to administer this article.
  16-11        (b)  The technical advisory committee members are appointed
  16-12  for staggered six-year terms, with the terms of three members
  16-13  expiring on February 1 of each odd-numbered year.
  16-14        (c)  A vacancy on the technical advisory committee shall be
  16-15  filled by the board in the same manner as other appointments to the
  16-16  committee.
  16-17        (d)  A member of the technical advisory committee is entitled
  16-18  to compensation and reimbursement for travel expenses as provided
  16-19  by the General Appropriations Act.
  16-20        (e)  The technical advisory committee is subject to Article
  16-21  6252-33, Revised Statutes.
  16-22        (f)  The technical advisory committee may elect a presiding
  16-23  officer, an assistant presiding officer, and secretary from among
  16-24  its members and may adopt rules for the conduct of its own
  16-25  activities.
  16-26        Sec. 15.  COMPLIANCE WITH STANDARDS NOT DEFENSE.  Compliance
  16-27  with minimum standards adopted by the board under this article does
   17-1  not constitute a defense in a civil action for damages arising from
   17-2  any work activity affecting lead.
   17-3        Sec. 16.  CIVIL PENALTY.  (a)  If it appears that a person
   17-4  has violated, is violating, or is threatening to violate this
   17-5  article or a rule adopted or order issued under this article, the
   17-6  commissioner may request the attorney general or the district,
   17-7  county, or city attorney of the city or county in which the
   17-8  violation has occurred, is occurring, or may occur to institute a
   17-9  civil suit for:
  17-10              (1)  injunctive relief to restrain the person from
  17-11  continuing the violation or threat of violation;
  17-12              (2)  the assessment and recovery of a civil penalty;
  17-13  or
  17-14              (3)  both injunctive relief and a civil penalty.
  17-15        (b)  The penalty may be in an amount not to exceed $10,000
  17-16  for each violation.  Each day of violation constitutes a separate
  17-17  violation for purposes of the penalty assessment.
  17-18        (c)  The owner of a structure or an agent of the owner of a
  17-19  structure who has contracted with or otherwise permitted a person
  17-20  without a certificate under this article to perform activity in the
  17-21  structure for which a certificate is required under this article is
  17-22  subject to a civil penalty, and the commissioner may request that a
  17-23  suit for collection of the civil penalty, for injunctive relief, or
  17-24  both be commenced as provided by Subsections (a) and (b) of this
  17-25  section.
  17-26        (d)  In determining the amount of a civil penalty, the court
  17-27  shall consider:
   18-1              (1)  the person's history of previous violations;
   18-2              (2)  the seriousness of the violation;
   18-3              (3)  any hazard to the health and safety of the public;
   18-4  and
   18-5              (4)  the demonstrated good faith of the person charged.
   18-6        (e)  A civil penalty recovered in a suit by the attorney
   18-7  general under this article shall be deposited in the state treasury
   18-8  to the credit of the general revenue fund.  A civil penalty
   18-9  recovered in a suit instituted by a local government under this
  18-10  article shall be paid to the local government.
  18-11        Sec. 17.  ADMINISTRATIVE PENALTY.  (a)  The board may impose
  18-12  an administrative penalty against a person licensed or regulated
  18-13  under this article who violates this article or a rule or order
  18-14  adopted under this article.
  18-15        (b)  The penalty for a violation may be in an amount not to
  18-16  exceed $5,000.   Each day a violation continues or occurs is a
  18-17  separate violation for purposes of imposing a penalty.
  18-18        (c)  The amount of the penalty shall be based on:
  18-19              (1)  the seriousness of the violation, including the
  18-20  nature, circumstances, extent, and gravity of any prohibited acts,
  18-21  and the hazard or potential hazard created to the health, safety,
  18-22  or economic welfare of the public;
  18-23              (2)  the economic harm to property or the environment
  18-24  caused by the violation;
  18-25              (3)  the history of previous violations;
  18-26              (4)  the amount necessary to deter future violations;
  18-27              (5)  efforts to correct the violation; and
   19-1              (6)  any other matter that justice may require.
   19-2        (d)  If the commissioner determines that a violation has
   19-3  occurred, the commissioner may issue to the board a report that
   19-4  states the facts on which the determination is based and the
   19-5  commissioner's recommendation on the imposition of a penalty,
   19-6  including a recommendation on the amount of the penalty.
   19-7        (e)  Within 14 days after the date the report is issued, the
   19-8  commissioner shall give written notice of the report to the person.
   19-9  The notice may be given by certified mail.  The notice must include
  19-10  a brief summary of the alleged violation and a statement of the
  19-11  amount of the recommended penalty and must inform the person that
  19-12  the person has a right to a hearing on the occurrence of the
  19-13  violation, the amount of the penalty, or both the occurrence of the
  19-14  violation and the amount of the penalty.
  19-15        (f)  Within 20 days after the date the person receives the
  19-16  notice, the person in writing may accept the determination and
  19-17  recommended penalty of the commissioner or may make a written
  19-18  request for a hearing on the occurrence of the violation, the
  19-19  amount of the penalty, or both the occurrence of the violation and
  19-20  the amount of the penalty.
  19-21        (g)  If the person accepts the determination and recommended
  19-22  penalty of the commissioner, the board by order shall approve the
  19-23  determination and impose the recommended penalty.
  19-24        (h)  If the person requests a hearing or fails to respond
  19-25  timely to the notice, the commissioner shall set a hearing and give
  19-26  notice of the hearing to the person.  The hearing shall be held by
  19-27  an administrative law judge of the State Office of Administrative
   20-1  Hearings.  The administrative law judge shall make findings of fact
   20-2  and conclusions of law and promptly issue to the board a proposal
   20-3  for a decision about the occurrence of the violation and the amount
   20-4  of a proposed penalty.  Based on the findings of fact, conclusions
   20-5  of law, and proposal for a decision, the board by order may find
   20-6  that a violation has occurred and impose a penalty or may find that
   20-7  no violation occurred.
   20-8        (i)  The notice of the board's order given to the person
   20-9  under Chapter 2001, Government Code, must include a statement of
  20-10  the right of the person to judicial review of the order.
  20-11        (j)  Within 30 days after the date the board's order becomes
  20-12  final as provided by Section 2001.144, Government Code, the person
  20-13  shall:
  20-14              (1)  pay the amount of the penalty;
  20-15              (2)  pay the amount of the penalty and file a petition
  20-16  for judicial review contesting the occurrence of the violation, the
  20-17  amount of the penalty, or both the occurrence of the violation and
  20-18  the amount of the penalty; or
  20-19              (3)  without paying the amount of the penalty, file a
  20-20  petition for judicial review contesting the occurrence of the
  20-21  violation, the amount of the penalty, or both the occurrence of the
  20-22  violation and the amount of the penalty.
  20-23        (k)  Within the 30-day period, a person who acts under
  20-24  Subsection (j)(3) of this section may:
  20-25              (1)  stay enforcement of the penalty by:
  20-26                    (A)  paying the amount of the penalty to the
  20-27  court for placement in an escrow account; or
   21-1                    (B)  giving to the court a supersedeas bond that
   21-2  is approved by the court for the amount of the penalty and that is
   21-3  effective until all judicial review of the board's order is final;
   21-4  or
   21-5              (2)  request the court to stay enforcement of the
   21-6  penalty by:
   21-7                    (A)  filing with the court a sworn affidavit of
   21-8  the person stating that the person is financially unable to pay the
   21-9  amount of the penalty and is financially unable to give the
  21-10  supersedeas bond; and
  21-11                    (B)  giving a copy of the affidavit to the
  21-12  commissioner by certified mail.
  21-13        (l)  If the commissioner receives a copy of an affidavit
  21-14  under Subsection (k)(2) of this section, the commissioner may file
  21-15  with the court, within five days after the date the copy is
  21-16  received, a contest to the affidavit.  The court shall hold a
  21-17  hearing on the facts alleged in the affidavit as soon as
  21-18  practicable and shall stay the enforcement of the penalty on
  21-19  finding that the alleged facts are true.   The person who files an
  21-20  affidavit has the burden of proving that the person is financially
  21-21  unable to pay the amount of the penalty and to give a supersedeas
  21-22  bond.
  21-23        (m)  If the person does not pay the amount of the penalty and
  21-24  the enforcement of the penalty is not stayed, the commissioner may
  21-25  refer the matter to the attorney general for collection of the
  21-26  amount of the penalty.
  21-27        (n)  Judicial review of the order of the board:
   22-1              (1)  is instituted by filing a petition as provided by
   22-2  Subchapter G, Chapter 2001, Government Code; and
   22-3              (2)  is under the substantial evidence rule.
   22-4        (o)  If the court sustains the occurrence of the violation,
   22-5  the court may uphold or reduce the amount of the penalty and order
   22-6  the person to pay the full or reduced amount of the penalty.  If
   22-7  the court does not sustain the occurrence of the violation, the
   22-8  court shall order that no penalty is owed.
   22-9        (p)  When the judgment of the court becomes final, the court
  22-10  shall proceed under this subsection.  If the person paid the amount
  22-11  of the penalty and if that amount is reduced or is not upheld by
  22-12  the court, the court shall order that the appropriate amount plus
  22-13  accrued interest be remitted to the person.  The rate of the
  22-14  interest is the rate charged on loans to depository institutions by
  22-15  the New York Federal Reserve Bank, and the interest shall be paid
  22-16  for the period beginning on the date the penalty was paid and
  22-17  ending on the date the penalty is remitted.  If the person gave a
  22-18  supersedeas bond and if the amount of the penalty is not upheld by
  22-19  the court, the court shall order the release of the bond.  If the
  22-20  person gave a supersedeas bond and if the amount of the penalty is
  22-21  reduced, the court shall order the release of the bond after the
  22-22  person pays the amount.
  22-23        (q)  A penalty collected under this section shall be remitted
  22-24  to the comptroller for deposit in the general revenue fund.
  22-25        (r)  All proceedings under this section are subject to
  22-26  Chapter 2001, Government Code.
  22-27        Sec. 18.  CRIMINAL PENALTY.  (a)  A person who is required to
   23-1  be certified under this article commits an offense if the person:
   23-2              (1)  engages in a lead-based paint activity or
   23-3  lead-based paint hazard without a certificate issued under this
   23-4  article and previously has been assessed a civil or administrative
   23-5  penalty for engaging in lead-based paint activity or lead-based
   23-6  paint hazard without a certificate issued under this article; or
   23-7              (2)  fails to keep records as required by Section 9 of
   23-8  this article and previously has been assessed a civil or
   23-9  administrative penalty for failing to keep records.
  23-10        (b)  An offense under this section is a misdemeanor and on
  23-11  conviction is punishable by:
  23-12              (1)  a fine not to exceed $20,000 for the first offense
  23-13  under this section; or
  23-14              (2)  a fine not to exceed $25,000, confinement in jail
  23-15  for not more than two years, or both, for a second or subsequent
  23-16  offense under this section.
  23-17        SECTION 2.  This Act takes effect September 1, 1995.
  23-18        SECTION 3.  In making the initial appointments to the
  23-19  technical advisory committee, the Texas Board of Health shall
  23-20  appoint three members for a term expiring February 1, 1997, three
  23-21  members for a term expiring February 1, 1999, and three members for
  23-22  a term expiring February 1, 2001.
  23-23        SECTION 4.  (a)  The change in law made by this Act applies
  23-24  only to an offense committed on or after the effective date of this
  23-25  Act.  For the purposes of this section, an offense is committed
  23-26  before the effective date of this Act if any element of the offense
  23-27  occurs before that date.
   24-1        (b)  An offense committed before the effective date of this
   24-2  Act is covered by the law in effect when the offense was committed,
   24-3  and the former law is continued in effect for that purpose.
   24-4        SECTION 5.  The importance of this legislation and the
   24-5  crowded condition of the calendars in both houses create an
   24-6  emergency and an imperative public necessity that the
   24-7  constitutional rule requiring bills to be read on three several
   24-8  days in each house be suspended, and this rule is hereby suspended.