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.