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.