By Uher                                               H.B. No. 2184
       74R3358 JMM-D
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to the regulation of the practice of engineering;
    1-3  providing penalties.
    1-4        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-5        SECTION 1.  The Texas Engineering Practice Act (Article
    1-6  3271a, Vernon's Texas Civil Statutes) is amended by adding Section
    1-7  9A to read as follows:
    1-8        Sec. 9A.  Section 403.094(h), Government Code, does not apply
    1-9  to the professional engineers' fund.
   1-10        SECTION 2.  The Texas Engineering Practice Act (Article
   1-11  3271a, Vernon's Texas Civil Statutes) is amended by adding Section
   1-12  22C to read as follows:
   1-13        Sec. 22C.  (a) The Board may impose an administrative penalty
   1-14  against a person registered under this Act or any other person who
   1-15  violates this Act or a rule or order adopted under this Act.
   1-16        (b)  The penalty for a violation may be in an amount not to
   1-17  exceed $5,000.  Each day a violation continues or occurs is a
   1-18  separate violation for purposes of imposing a penalty.
   1-19        (c)  The amount of the penalty shall be based on:
   1-20              (1)  the seriousness of the violation, including the
   1-21  nature, circumstances, extent, and gravity of any prohibited acts,
   1-22  and the hazard or potential hazard created to the health, safety,
   1-23  or economic welfare of the public;
   1-24              (2)  the economic harm to property or the environment
    2-1  caused by the violation;
    2-2              (3)  the history of previous violations;
    2-3              (4)  the amount necessary to deter future violations;
    2-4              (5)  efforts to correct the violation; and
    2-5              (6)  any other matter that justice may require.
    2-6        (d)  On the determination by the director of the Board that a
    2-7  violation has occurred, the director may issue to the Board a
    2-8  report that states the facts on which the determination is based
    2-9  and the director's recommendation on the imposition of a penalty,
   2-10  including a recommendation on the amount of the penalty.
   2-11        (e)  Within 14 days after the date the report is issued, the
   2-12  director shall give written notice of the report to the person.
   2-13  The notice may be given by certified mail.  The notice must include
   2-14  a brief summary of the alleged violation and a statement of the
   2-15  amount of the recommended penalty and must inform the person that
   2-16  the person has a right to a hearing on the occurrence of the
   2-17  violation, the amount of the penalty, or both the occurrence of the
   2-18  violation and the amount of the penalty.
   2-19        (f)  Within 20 days after the date the person receives the
   2-20  notice, the person in writing may accept the determination and
   2-21  recommended penalty of the director or may make a written request
   2-22  for a hearing on the occurrence of the violation, the amount of the
   2-23  penalty, or both the occurrence of the violation and the amount of
   2-24  the penalty.
   2-25        (g)  If the person accepts the determination and recommended
   2-26  penalty of the director, the Board by order shall approve the
   2-27  determination and impose the recommended penalty.
    3-1        (h)  If the person requests a hearing or fails to respond
    3-2  timely to the notice, the director shall set a hearing and give
    3-3  notice of the hearing to the person.  The hearing shall be held by
    3-4  an administrative law judge of the State Office of Administrative
    3-5  Hearings.  The administrative law judge shall make findings of fact
    3-6  and conclusions of law and promptly issue to the Board a proposal
    3-7  for a decision about the occurrence of the violation and the amount
    3-8  of a proposed penalty.  Based on the findings of fact, conclusions
    3-9  of law, and proposal for a decision, the Board by order may find
   3-10  that a violation has occurred and impose a penalty or may find that
   3-11  no violation occurred.
   3-12        (i)  The notice of the Board's order given to the person
   3-13  under Chapter 2001, Government Code, must include a statement of
   3-14  the right of the person to judicial review of the order.
   3-15        (j)  Within 30 days after the date the Board's order becomes
   3-16  final as provided by Section 2001.144, Government Code, the person
   3-17  shall:
   3-18              (1)  pay the amount of the penalty;
   3-19              (2)  pay the amount of the penalty and file a petition
   3-20  for judicial review contesting the occurrence of the violation, the
   3-21  amount of the penalty, or both the occurrence of the violation and
   3-22  the amount of the penalty; or
   3-23              (3)  without paying the amount of the penalty, file a
   3-24  petition for judicial review contesting the occurrence of the
   3-25  violation, the amount of the penalty, or both the occurrence of the
   3-26  violation and the amount of the penalty.
   3-27        (k)  Within the 30-day period, a person who acts under
    4-1  Subsection (j)(3) of this section may:
    4-2              (1)  stay enforcement of the penalty by:
    4-3                    (A)  paying the amount of the penalty to the
    4-4  court for placement in an escrow account; or
    4-5                    (B)  giving to the court a supersedeas bond that
    4-6  is approved by the court for the amount of the penalty and that is
    4-7  effective until all judicial review of the Board's order is final;
    4-8  or
    4-9              (2)  request the court to stay enforcement of the
   4-10  penalty by:
   4-11                    (A)  filing with the court a sworn affidavit of
   4-12  the person stating that the person is financially unable to pay the
   4-13  amount of the penalty and is financially unable to give the
   4-14  supersedeas bond; and
   4-15                    (B)  giving a copy of the affidavit to the
   4-16  executive director by certified mail.
   4-17        (l)  On receipt by the director of a copy of an affidavit
   4-18  under Subsection (k)(2) of this section, the director may file with
   4-19  the court, within five days after the date the copy is received, a
   4-20  contest to the affidavit.  The court shall hold a hearing on the
   4-21  facts alleged in the affidavit as soon as practicable and shall
   4-22  stay the enforcement of the penalty on finding that the alleged
   4-23  facts are true.  The person who files an affidavit has the burden
   4-24  of proving that the person is financially unable to pay the amount
   4-25  of the penalty and to give a supersedeas bond.
   4-26        (m)  If the person does not pay the amount of the penalty and
   4-27  the enforcement of the penalty is not stayed, the director may
    5-1  refer the matter to the attorney general for collection of the
    5-2  amount of the penalty.
    5-3        (n)  Judicial review of the order of the Board:
    5-4              (1)  is instituted by filing a petition as provided by
    5-5  Subchapter G, Chapter 2001, Government Code; and
    5-6              (2)  is under the substantial evidence rule.
    5-7        (o)  If the court sustains the occurrence of the violation,
    5-8  the court may uphold or reduce the amount of the penalty and order
    5-9  the person to pay the full or reduced amount of the penalty.  If
   5-10  the court does not sustain the occurrence of the violation, the
   5-11  court shall order that no penalty is owed.
   5-12        (p)  When the judgment of the court becomes final, the court
   5-13  shall proceed under this subsection.  If the person paid the amount
   5-14  of the penalty and if that amount is reduced or is not upheld by
   5-15  the court, the court shall order that the appropriate amount plus
   5-16  accrued interest be remitted to the person.  The rate of the
   5-17  interest is the rate charged on loans to depository institutions by
   5-18  the New York Federal Reserve Bank, and the interest shall be paid
   5-19  for the period beginning on the date the penalty was paid and
   5-20  ending on the date the penalty is remitted.  If the person gave a
   5-21  supersedeas bond and if the amount of the penalty is not upheld by
   5-22  the court, the court shall order the release of the bond.  If the
   5-23  person gave a supersedeas bond and if the amount of the penalty is
   5-24  reduced, the court shall order the release of the bond after the
   5-25  person pays the amount.
   5-26        (q)  A penalty collected under this section shall be remitted
   5-27  to the comptroller for deposit in the general revenue fund.
    6-1        (r)  All proceedings under this section are subject to
    6-2  Chapter 2001, Government Code.
    6-3        SECTION 3.  The professional engineers' fund, as that fund is
    6-4  described by Section 9, The Texas Engineering Practice Act (Article
    6-5  3271a, Vernon's Texas Civil Statutes), is re-created as a special
    6-6  fund to be used for the purposes described by that section.
    6-7        SECTION 4.  This Act takes effect September 1, 1995, and
    6-8  applies only to a violation of The Texas Engineering Practice Act
    6-9  (Article 3271a, Vernon's Texas Civil Statutes) or a rule adopted
   6-10  under that Act that occurs on or after that date.  A violation that
   6-11  occurs before that date is governed by the law in effect on the
   6-12  date the violation occurred, and the former law is continued in
   6-13  effect for that purpose.
   6-14        SECTION 5.  The importance of this legislation and the
   6-15  crowded condition of the calendars in both houses create an
   6-16  emergency and an imperative public necessity that the
   6-17  constitutional rule requiring bills to be read on three several
   6-18  days in each house be suspended, and this rule is hereby suspended.