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.