1-1 By: Black (Senate Sponsor - Armbrister) H.B. No. 2245
1-2 (In the Senate - Received from the House April 28, 1995;
1-3 May 1, 1995, read first time and referred to Committee on Natural
1-4 Resources; May 10, 1995, reported favorably by the following vote:
1-5 Yeas 8, Nays 0; May 10, 1995, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to the continuation and functions of the Texas Animal
1-9 Health Commission; providing administrative and criminal penalties.
1-10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-11 SECTION 1. Section 146.022, Agriculture Code, is amended to
1-12 read as follows:
1-13 Sec. 146.022. Contracts. (a) The department may execute
1-14 agreements with corporations or other private concerns to provide
1-15 feed, medical care, or other necessary goods and services in
1-16 connection with the processing of animals that are to be exported
1-17 or imported.
1-18 (b) The department shall enter into any cooperative
1-19 agreement initiated by the Texas Animal Health Commission under
1-20 Section 161.053.
1-21 SECTION 2. Section 161.001(a), Agriculture Code, is amended
1-22 to read as follows:
1-23 (a) In this chapter:
1-24 (1) "Animal" includes livestock, exotic livestock,
1-25 domestic fowl, and exotic fowl.
1-26 (2) <(1)> "Commission" means the Texas Animal Health
1-27 Commission.
1-28 (3) <(2)> "Livestock" includes cattle, horses, mules,
1-29 asses, sheep, goats, and hogs.
1-30 (4) <(3)> "Exotic livestock" means grass-eating or
1-31 plant-eating, single-hooved or cloven-hooved mammals that are not
1-32 indigenous to this state and are known as ungulates, including
1-33 animals from the swine, horse, tapir, rhinoceros, elephant, deer,
1-34 and antelope families.
1-35 (5) <(4)> "Exotic fowl" means any avian species that
1-36 is not indigenous to this state. The term includes ratites.
1-37 SECTION 3. Section 161.005(b), Agriculture Code, is amended
1-38 to read as follows:
1-39 (b) Any written instrument issued by the commission is
1-40 admissible as evidence in court if certified by the presiding
1-41 officer <chairman> or the executive director.
1-42 SECTION 4. Subchapter A, Chapter 161, Agriculture Code, is
1-43 amended by adding Section 161.008 to read as follows:
1-44 Sec. 161.008. STATE FUNDS REFORM ACT APPLICABLE. All money
1-45 paid to the commission under this chapter is subject to Subchapter
1-46 F, Chapter 404, Government Code.
1-47 SECTION 5. Section 161.021, Agriculture Code, is amended by
1-48 amending Subsection (c) and adding Subsection (d) to read as
1-49 follows:
1-50 (c) Appointments to the commission shall be made without
1-51 regard to the race, color, disability <handicap>, sex, religion,
1-52 age, or national origin of the appointees.
1-53 (d) A person is not eligible for appointment as a public
1-54 member of the commission if the person or the person's spouse:
1-55 (1) is registered or licensed by the commission;
1-56 (2) is employed by or participates in the management
1-57 of a business entity or other organization regulated by the
1-58 commission or receiving funds from the commission;
1-59 (3) owns or controls, directly or indirectly, more
1-60 than a 10 percent interest in a business entity or other
1-61 organization regulated by the commission or receiving funds from
1-62 the commission; or
1-63 (4) uses or receives a substantial amount of tangible
1-64 goods, services, or funds from the commission, other than
1-65 compensation or reimbursement authorized by law for commission
1-66 membership, attendance, or expenses.
1-67 SECTION 6. Subchapter B, Chapter 161, Agriculture Code, is
1-68 amended by adding Section 161.023 to read as follows:
2-1 Sec. 161.023. MANDATORY TRAINING PROGRAM FOR COMMISSIONERS.
2-2 (a) Before a member of the commission may assume the member's
2-3 duties and before the member may be confirmed by the senate, the
2-4 member must complete at least one course of the training program
2-5 established under this section.
2-6 (b) A training program established under this section shall
2-7 provide information to the member regarding:
2-8 (1) the enabling legislation that created the
2-9 commission;
2-10 (2) the programs operated by the commission;
2-11 (3) the role and functions of the commission;
2-12 (4) the rules of the commission with an emphasis on
2-13 the rules that relate to disciplinary and investigatory authority;
2-14 (5) the current budget for the commission;
2-15 (6) the results of the most recent formal audit of the
2-16 commission;
2-17 (7) the requirements of the:
2-18 (A) open meetings law, Chapter 551, Government
2-19 Code;
2-20 (B) open records law, Chapter 552, Government
2-21 Code; and
2-22 (C) administrative procedure law, Chapter 2001,
2-23 Government Code;
2-24 (8) the requirements of the conflict of interest laws
2-25 and other laws relating to public officials; and
2-26 (9) any applicable ethics policies adopted by the
2-27 commission or the Texas Ethics Commission.
2-28 SECTION 7. Section 161.024, Agriculture Code, is amended to
2-29 read as follows:
2-30 Sec. 161.024. PRESIDING OFFICER <CHAIRMAN>. The governor
2-31 shall designate a member of the commission as the presiding officer
2-32 <one commissioner as chairman> of the commission to serve in that
2-33 capacity at the pleasure of the governor.
2-34 SECTION 8. Section 161.027, Agriculture Code, is amended to
2-35 read as follows:
2-36 Sec. 161.027. Sunset Provision. The Texas Animal Health
2-37 Commission is subject to Chapter 325, Government Code (Texas Sunset
2-38 Act). Unless continued in existence as provided by that chapter,
2-39 the commission is abolished September 1, 2007 <1995>.
2-40 SECTION 9. Section 161.029(c), Agriculture Code, is amended
2-41 to read as follows:
2-42 (c) If the executive director has knowledge that a potential
2-43 ground for removal exists, the executive director shall notify the
2-44 presiding officer <chairman> of the commission of the ground. The
2-45 presiding officer <chairman> shall then notify the governor and the
2-46 attorney general that a potential ground for removal exists. If the
2-47 potential ground for removal involves the presiding officer, the
2-48 executive director shall notify the next highest officer of the
2-49 commission, who shall notify the governor and the attorney general
2-50 that a potential ground for removal exists.
2-51 SECTION 10. Section 161.030, Agriculture Code, is amended to
2-52 read as follows:
2-53 Sec. 161.030. Separation of Authority. The commission shall
2-54 develop and implement policies that clearly separate the
2-55 policy-making <define the respective> responsibilities of the
2-56 commission and the management responsibilities of the executive
2-57 director and the staff of the commission.
2-58 SECTION 11. Section 161.031, Agriculture Code, is amended to
2-59 read as follows:
2-60 Sec. 161.031. Personnel. (a) The executive director or the
2-61 executive director's designee shall develop an intraagency career
2-62 ladder program that addresses opportunities for mobility and
2-63 advancement for employees within the commission. The program shall
2-64 require intraagency posting of all <nonentry level> positions
2-65 concurrently with any public posting.
2-66 (b) The executive director or the executive director's
2-67 designee shall develop a system of annual performance evaluations
2-68 that are based on documented employee performance. All merit pay
2-69 for commission employees must be based on the system established
2-70 under this subsection.
3-1 (c) The commission shall provide to its members and
3-2 employees, as often as necessary, information regarding their
3-3 qualifications for office or employment under this chapter and
3-4 their responsibilities under applicable laws relating to standards
3-5 of conduct for state officers or employees.
3-6 (d) The executive director or the executive director's
3-7 designee shall prepare and maintain a written policy statement to
3-8 assure implementation of a program of equal employment opportunity
3-9 under which all personnel transactions are made without regard to
3-10 race, color, disability <handicap>, sex, religion, age, or national
3-11 origin. The policy statement must include:
3-12 (1) personnel policies, including policies relating to
3-13 recruitment, evaluation, selection, appointment, training, and
3-14 promotion of personnel that are in compliance with the requirements
3-15 of Chapter 21, Labor Code;
3-16 (2) a comprehensive analysis of the commission work
3-17 force that meets federal and state guidelines;
3-18 (3) procedures by which a determination can be made
3-19 about the extent of underuse <significant underutilization> in the
3-20 commission work force of all persons for whom federal or state
3-21 guidelines encourage a more equitable balance; and
3-22 (4) reasonable methods to appropriately address those
3-23 areas of underuse <significant underutilization>.
3-24 (e) A policy statement prepared under Subsection (d) of this
3-25 section must cover an annual period, be updated <at least> annually
3-26 and reviewed by the Texas Commission on Human Rights for compliance
3-27 with Subsection (d)(1) of this section, and be filed with the
3-28 governor's office.
3-29 (f) The governor's office shall deliver a biennial report to
3-30 the legislature based on the information received under Subsection
3-31 (e) of this section. The report may be made separately or as a
3-32 part of other biennial reports made to the legislature.
3-33 SECTION 12. Section 161.032, Agriculture Code, is amended to
3-34 read as follows:
3-35 Sec. 161.032. Annual Report. The commission shall prepare
3-36 <file> annually <with the governor and the presiding officer of
3-37 each house of the legislature> a complete and detailed written
3-38 report accounting for all funds received and disbursed by the
3-39 commission during the preceding fiscal year. The annual report
3-40 must meet the reporting requirements applicable to financial
3-41 reporting provided in <be in the form and reported in the time
3-42 prescribed by> the General Appropriations Act.
3-43 SECTION 13. Sections 161.033(c) and (d), Agriculture Code,
3-44 are amended to read as follows:
3-45 (c) The commission shall keep a file about each <If a>
3-46 written complaint <is> filed with the commission that the
3-47 commission has authority to resolve. The commission shall provide
3-48 to the person filing the complaint and the persons or entities
3-49 complained about the commission's policies and procedures
3-50 pertaining to complaint investigation and resolution. The<, the>
3-51 commission, at least quarterly and until final disposition of the
3-52 complaint, shall notify the person filing the complaint and the
3-53 persons or entities complained about <parties to the complaint> of
3-54 the status of the complaint unless the notice would jeopardize an
3-55 undercover investigation.
3-56 (d) The commission shall keep <an> information <file> about
3-57 each complaint filed with the commission. The information shall
3-58 include:
3-59 (1) the date the complaint is received;
3-60 (2) the name of the complainant;
3-61 (3) the subject matter of the complaint;
3-62 (4) a record of all persons contacted in relation to
3-63 the complaint;
3-64 (5) a summary of the results of the review or
3-65 investigation of the complaint; and
3-66 (6) for complaints for which the agency took no
3-67 action, an explanation of the reason the complaint was closed
3-68 without action <that the commission has the authority to resolve>.
3-69 SECTION 14. Section 161.034, Agriculture Code, is amended to
3-70 read as follows:
4-1 Sec. 161.034. Public Meetings. (a) The commission is
4-2 subject to the open meetings law, Chapter 551, Government Code.
4-3 (b) The commission shall develop and implement policies that
4-4 provide the public with a reasonable opportunity to appear before
4-5 the commission and to speak on any issue under the jurisdiction of
4-6 the commission.
4-7 SECTION 15. Subchapter B, Chapter 161, Agriculture Code, is
4-8 amended by adding Sections 161.035, 161.036, 161.037, and 161.038
4-9 to read as follows:
4-10 Sec. 161.035. ADVISORY COMMITTEES. (a) The commission may
4-11 establish advisory committees as it considers necessary to assist
4-12 it in developing proposed rules for the regulation of exotic
4-13 livestock and exotic fowl.
4-14 (b) A member of an advisory committee established under this
4-15 section serves at the pleasure of the commission.
4-16 (c) A member of an advisory committee established under this
4-17 section is not entitled to compensation.
4-18 Sec. 161.036. PROGRAM AND FACILITY ACCESSIBILITY. The
4-19 commission shall comply with federal and state laws related to
4-20 program and facility accessibility. The executive director shall
4-21 also prepare and maintain a written plan that describes how a
4-22 person who does not speak English can be provided reasonable access
4-23 to the commission's programs and services.
4-24 Sec. 161.037. PERIODIC REVIEW OF AGENCY FUNCTIONS. (a) The
4-25 commission shall periodically review services provided by the
4-26 commission, including laboratory services, that also are provided
4-27 in the private sector in order to determine the most cost-effective
4-28 method for delivering the services.
4-29 (b) The commission shall consult the Council on Competitive
4-30 Government for assistance during each review performed under this
4-31 section.
4-32 Sec. 161.038. ADMINISTRATIVE PROCEDURE ACT APPLICABLE. The
4-33 commission is subject to the administrative procedure law, Chapter
4-34 2001, Government Code.
4-35 SECTION 16. Section 161.048, Agriculture Code, is amended to
4-36 read as follows:
4-37 Sec. 161.048. INSPECTION OF SHIPMENT OF ANIMALS <LIVESTOCK>
4-38 OR ANIMAL <LIVESTOCK> PRODUCTS. (a) An agent of the commission is
4-39 entitled to stop and inspect a shipment of animals <livestock> or
4-40 animal <livestock> products being transported in this state in
4-41 order to:
4-42 (1) determine if the shipment is in compliance with
4-43 the laws and rules administered by the commission affecting the
4-44 shipment;
4-45 (2) determine if the shipment originated from a
4-46 quarantined area or herd; or
4-47 (3) determine if the shipment presents a danger to the
4-48 public health or livestock industry through insect infestation or
4-49 through a communicable or noncommunicable disease.
4-50 (b) The commission may detain a shipment of
4-51 animals <livestock> or animal <livestock> products that is being
4-52 transported in violation of law or a rule of the commission. The
4-53 commission may require that the shipment be unloaded at the nearest
4-54 available loading facility.
4-55 (c) The commission may not inspect a railroad train at any
4-56 point other than a terminal.
4-57 (d) The commission may post signs on public highways and use
4-58 signaling devices, including red lights, in conjunction with signs,
4-59 if necessary to effectively signal and stop vehicles for
4-60 inspection.
4-61 (e) In this section, "animal <"livestock> product" includes
4-62 hides; bones; hoofs; horns; viscera; parts of animal bodies;
4-63 litter, straw, or hay used for bedding; and any other substance
4-64 capable of carrying insects or a disease that may endanger the
4-65 livestock industry.
4-66 SECTION 17. Sections 161.049(c), (d), and (e), Agriculture
4-67 Code, are amended to read as follows:
4-68 (c) The commission may require a livestock, exotic
4-69 livestock, <or> domestic fowl, or exotic fowl dealer to maintain
4-70 records of all livestock, exotic livestock, <or> domestic fowl, or
5-1 exotic fowl bought and sold <transactions handled> by the dealer.
5-2 (d) The commission may inspect and copy <conduct periodic
5-3 inspections of> the records of a livestock, exotic livestock, <or>
5-4 domestic fowl, or exotic fowl dealer that relate to the buying and
5-5 selling of those animals <livestock or domestic fowl transactions>.
5-6 (e) The commission by rule shall <may> adopt the form and
5-7 content of the records maintained by a <livestock or domestic fowl>
5-8 dealer under Subsection (c) of this section.
5-9 SECTION 18. Subchapter C, Chapter 161, Agriculture Code, is
5-10 amended by adding Sections 161.053 and 161.054 to read as follows:
5-11 Sec. 161.053. COOPERATIVE AGREEMENTS. The commission may
5-12 enter into a cooperative agreement with the department to use for
5-13 animal health purposes livestock export pens controlled by the
5-14 department.
5-15 Sec. 161.054. IDENTIFICATION OF EXOTIC ANIMALS. The
5-16 commission may adopt rules to establish a standard method for
5-17 identifying and tracking exotic livestock and exotic fowl.
5-18 SECTION 19. Section 161.061(b), Agriculture Code, is amended
5-19 to read as follows:
5-20 (b) If the commission determines that a disease listed in
5-21 Section 161.041 of this code or an agency of transmission of one of
5-22 those diseases exists in a place in this state or among livestock,
5-23 exotic livestock, domestic animals, <or> domestic fowl, or exotic
5-24 fowl, or that a place in this state or livestock, exotic livestock,
5-25 domestic animals, <or> domestic fowl, or exotic fowl are exposed
5-26 to one of those diseases or an agency of transmission of one of
5-27 those diseases, the commission shall establish a quarantine on the
5-28 affected animals <livestock, domestic animals, or domestic fowl,>
5-29 or on the affected place. The quarantine of an affected place may
5-30 extend to any affected area, including a county, district, pasture,
5-31 lot, ranch, farm, field, range, thoroughfare, building, stable, or
5-32 stockyard pen.
5-33 SECTION 20. Section 161.081(a), Agriculture Code, is amended
5-34 to read as follows:
5-35 (a) The commission by rule may regulate the movement,
5-36 including movement by a railroad company or other common carrier,
5-37 of livestock, exotic livestock, domestic animals, <or> domestic
5-38 fowl, or exotic fowl into this state from another state, territory,
5-39 or country.
5-40 SECTION 21. Section 161.101, Agriculture Code, is amended by
5-41 amending Subsection (a) and adding Subsection (c) to read as
5-42 follows:
5-43 (a) A veterinarian shall report the existence of the
5-44 following diseases among livestock, exotic livestock, <or> domestic
5-45 fowl, or exotic fowl to the commission within 24 hours after
5-46 diagnosis:
5-47 (1) anthrax;
5-48 (2) brucellosis;
5-49 (3) foot-and-mouth disease;
5-50 (4) hog cholera;
5-51 (5) laryngo tracheitis;
5-52 (6) ornithosis;
5-53 (7) piroplasmosis;
5-54 (8) pseudorabies;
5-55 (9) pullorum;
5-56 (10) scabies;
5-57 (11) scrapie;
5-58 (12) typhimurium;
5-59 (13) typhoid;
5-60 (14) vesicular exanthema; or
5-61 (15) vesicular stomatitis.
5-62 (c) If the animals subject to reporting requirements under
5-63 this section are exotic livestock or exotic fowl, the veterinarian,
5-64 in addition to reporting information required by Subsections (a)
5-65 and (b), shall report to the commission information relating to:
5-66 (1) the name and address of the owner of the animal
5-67 involved; and
5-68 (2) the location of the animal involved.
5-69 SECTION 22. Section 161.111, Agriculture Code, is amended to
5-70 read as follows:
6-1 Sec. 161.111. Definition. In this subchapter, "livestock
6-2 market" means a stockyard, sales pavilion, or sales ring where
6-3 livestock, exotic livestock, or exotic fowl are assembled or
6-4 concentrated at regular or irregular intervals for sale, trade,
6-5 barter, or exchange.
6-6 SECTION 23. Section 161.112, Agriculture Code, is amended to
6-7 read as follows:
6-8 Sec. 161.112. RULES. (a) Following notice and public
6-9 hearing, the commission shall adopt rules relating to the movement
6-10 of livestock, exotic livestock, and exotic fowl from livestock
6-11 markets and shall require tests, immunization, and dipping of those
6-12 livestock as necessary to protect against the spread of
6-13 communicable diseases.
6-14 (b) Following notice and public hearing, the commission may
6-15 adopt rules requiring permits for moving exotic livestock and
6-16 exotic fowl from livestock markets as necessary to protect against
6-17 the spread of communicable diseases.
6-18 SECTION 24. Section 161.136(a), Agriculture Code, is amended
6-19 to read as follows:
6-20 (a) A person commits an offense if, without a certificate
6-21 required by rule of the commission under Section 161.043 of this
6-22 code, the person:
6-23 (1) enters livestock, exotic livestock, domestic
6-24 animals, <or> domestic fowl, or exotic fowl into an exhibition,
6-25 show, or fair; or
6-26 (2) brings livestock, exotic livestock, domestic
6-27 animals, <or> domestic fowl, or exotic fowl on the grounds of an
6-28 exhibition, show, or fair for the purpose of entering.
6-29 SECTION 25. Section 161.139(a), Agriculture Code, is amended
6-30 to read as follows:
6-31 (a) A person commits an offense if the person:
6-32 (1) refuses to permit inspection of animals
6-33 <livestock> under Section 161.048 of this code; or
6-34 (2) fails to stop a truck, trailer, wagon, or
6-35 automobile suspected of carrying animals <livestock> or animal
6-36 <livestock> products if requested or signaled to do so by an agent
6-37 of the commission.
6-38 SECTION 26. Section 161.140, Agriculture Code, is amended to
6-39 read as follows:
6-40 Sec. 161.140. REFUSAL TO PERMIT EXAMINATION OF ANIMAL
6-41 <LIVESTOCK> OR CARCASS. (a) A person commits an offense if the
6-42 person:
6-43 (1) refuses to allow the commission or an agent of the
6-44 commission to examine an animal <livestock> or all or part of an
6-45 animal <a livestock> carcass that is owned by or possessed by the
6-46 person and that the commission or agent has reason to believe is
6-47 affected by a communicable disease; or
6-48 (2) hinders or obstructs the commission or its agent
6-49 in an examination under Subdivision (1) of this subsection.
6-50 (b) An offense under this section is a Class C misdemeanor
6-51 unless it is shown on the trial of the offense that the defendant
6-52 has been previously convicted under this section, in which event
6-53 the offense is a Class B misdemeanor.
6-54 SECTION 27. Sections 161.141(a) and (b), Agriculture Code,
6-55 are amended to read as follows:
6-56 (a) A person commits an offense if the person violates
6-57 Section 161.065(a)(1) or (a)(2) of this code or, as owner or
6-58 caretaker of the livestock, exotic livestock, domestic animals,
6-59 <or> domestic fowl, or exotic fowl, the person permits movement in
6-60 violation of Section 161.065(a)(1) or (a)(2) of this code. Except
6-61 as provided by Subsection (c) or (d) of this section, an offense
6-62 under this subsection is a Class C misdemeanor for each animal
6-63 moved in violation of the quarantine unless it is shown on the
6-64 trial of the offense that the defendant has been previously
6-65 convicted under this section, in which event the offense is a Class
6-66 B misdemeanor.
6-67 (b) A person commits an offense if the person violates
6-68 Section 161.065(a)(3) of this code or, as owner or caretaker of the
6-69 commodities or animals, the person permits movement in violation of
6-70 Section 161.065(a)(3) of this code. Except as provided by
7-1 Subsection (c) or (d) of this section, an offense under this
7-2 subsection is a Class C misdemeanor for each animal or shipment of
7-3 commodities moved in violation of the quarantine unless it is shown
7-4 on the trial of the offense that the defendant has been previously
7-5 convicted under this section, in which event the offense is a Class
7-6 B misdemeanor.
7-7 SECTION 28. Subchapter H, Chapter 161, Agriculture Code, is
7-8 amended by adding Section 161.148 to read as follows:
7-9 Sec. 161.148. ADMINISTRATIVE PENALTY. (a) The commission
7-10 may impose an administrative penalty against a person who violates
7-11 a rule or order adopted under this subtitle.
7-12 (b) The penalty for a violation may be in an amount not to
7-13 exceed $1,000. Each day a violation continues or occurs is a
7-14 separate violation for purposes of imposing a penalty.
7-15 (c) The amount of the penalty shall be based on:
7-16 (1) the seriousness of the violation, including the
7-17 nature, circumstances, extent, and gravity of any prohibited acts,
7-18 and the hazard or potential hazard created to the health, safety,
7-19 or economic welfare of the public;
7-20 (2) the economic harm to property or the environment
7-21 caused by the violation;
7-22 (3) the history of previous violations;
7-23 (4) the amount necessary to deter future violations;
7-24 (5) efforts to correct the violation; and
7-25 (6) any other matter that justice may require.
7-26 (d) An executive director who determines that a violation
7-27 has occurred may issue to the commission a report that states the
7-28 facts on which the determination is based and the director's
7-29 recommendation on the imposition of a penalty, including a
7-30 recommendation on the amount of the penalty.
7-31 (e) Within 14 days after the date the report is issued, the
7-32 executive director shall give written notice of the report to the
7-33 person. The notice may be given by certified mail. The notice
7-34 must include a brief summary of the alleged violation and a
7-35 statement of the amount of the recommended penalty and must inform
7-36 the person that the person has a right to a hearing on the
7-37 occurrence of the violation, the amount of the penalty, or both the
7-38 occurrence of the violation and the amount of the penalty.
7-39 (f) Within 20 days after the date the person receives the
7-40 notice, the person in writing may accept the determination and
7-41 recommended penalty of the executive director or may make a written
7-42 request for a hearing on the occurrence of the violation, the
7-43 amount of the penalty, or both the occurrence of the violation and
7-44 the amount of the penalty.
7-45 (g) If the person accepts the determination and recommended
7-46 penalty of the executive director, the commission by order shall
7-47 approve the determination and impose the recommended penalty.
7-48 (h) If the person requests a hearing or fails to respond
7-49 timely to the notice, the executive director shall set a hearing
7-50 and give notice of the hearing to the person. The hearing shall be
7-51 held by an administrative law judge of the State Office of
7-52 Administrative Hearings. The administrative law judge shall make
7-53 findings of fact and conclusions of law and promptly issue to the
7-54 commission a proposal for a decision about the occurrence of the
7-55 violation and the amount of a proposed penalty. Based on the
7-56 findings of fact, conclusions of law, and proposal for a decision,
7-57 the commission by order may find that a violation has occurred and
7-58 impose a penalty or may find that no violation occurred.
7-59 (i) The notice of the commission's order given to the person
7-60 under Chapter 2001, Government Code, must include a statement of
7-61 the right of the person to judicial review of the order.
7-62 (j) Within 30 days after the date the commission's order
7-63 becomes final as provided by Section 2001.144, Government Code, the
7-64 person shall:
7-65 (1) pay the amount of the penalty;
7-66 (2) pay the amount of the penalty and file a petition
7-67 for judicial review contesting the occurrence of the violation, the
7-68 amount of the penalty, or both the occurrence of the violation and
7-69 the amount of the penalty; or
7-70 (3) without paying the amount of the penalty, file a
8-1 petition for judicial review contesting the occurrence of the
8-2 violation, the amount of the penalty, or both the occurrence of the
8-3 violation and the amount of the penalty.
8-4 (k) Within the 30-day period, a person who acts under
8-5 Subsection (j)(3) of this section may:
8-6 (1) stay enforcement of the penalty by:
8-7 (A) paying the amount of the penalty to the
8-8 court for placement in an escrow account; or
8-9 (B) giving to the court a supersedeas bond that
8-10 is approved by the court for the amount of the penalty and that is
8-11 effective until all judicial review of the board's order is final;
8-12 or
8-13 (2) request the court to stay enforcement of the
8-14 penalty by:
8-15 (A) filing with the court a sworn affidavit of
8-16 the person stating that the person is financially unable to pay the
8-17 amount of the penalty and is financially unable to give the
8-18 supersedeas bond; and
8-19 (B) giving a copy of the affidavit to the
8-20 executive director by certified mail.
8-21 (l) An executive director who receives a copy of an
8-22 affidavit under Subsection (k)(2) of this section may file with the
8-23 court, within five days after the date the copy is received, a
8-24 contest to the affidavit. The court shall hold a hearing on the
8-25 facts alleged in the affidavit as soon as practicable and shall
8-26 stay the enforcement of the penalty on finding that the alleged
8-27 facts are true. The person who files an affidavit has the burden
8-28 of proving that the person is financially unable to pay the amount
8-29 of the penalty and to give a supersedeas bond.
8-30 (m) If the person does not pay the amount of the penalty and
8-31 the enforcement of the penalty is not stayed, the executive
8-32 director may refer the matter to the attorney general for
8-33 collection of the amount of the penalty.
8-34 (n) Judicial review of the order of the commission:
8-35 (1) is instituted by filing a petition as provided by
8-36 Subchapter G, Chapter 2001, Government Code; and
8-37 (2) is under the substantial evidence rule.
8-38 (o) If the court sustains the occurrence of the violation,
8-39 the court may uphold or reduce the amount of the penalty and order
8-40 the person to pay the full or reduced amount of the penalty. If
8-41 the court does not sustain the occurrence of the violation, the
8-42 court shall order that no penalty is owed.
8-43 (p) When the judgment of the court becomes final, the court
8-44 shall proceed under this subsection. If the person paid the amount
8-45 of the penalty and if that amount is reduced or is not upheld by
8-46 the court, the court shall order that the appropriate amount plus
8-47 accrued interest be remitted to the person. The rate of the
8-48 interest is the rate charged on loans to depository institutions by
8-49 the New York Federal Reserve Bank, and the interest shall be paid
8-50 for the period beginning on the date the penalty was paid and
8-51 ending on the date the penalty is remitted. If the person gave a
8-52 supersedeas bond and if the amount of the penalty is not upheld by
8-53 the court, the court shall order the release of the bond. If the
8-54 person gave a supersedeas bond and if the amount of the penalty is
8-55 reduced, the court shall order the release of the bond after the
8-56 person pays the amount.
8-57 (q) A penalty collected under this section shall be remitted
8-58 to the comptroller for deposit in the general revenue fund.
8-59 (r) All proceedings under this section are subject to
8-60 Chapter 2001, Government Code.
8-61 SECTION 29. Section 164.006, Agriculture Code, is amended to
8-62 read as follows:
8-63 Sec. 164.006. ACTIONS OF COMMISSION <CHAIRMAN>. The
8-64 presiding officer <chairman> of the commission may perform any act
8-65 or duty of the commission under this chapter.
8-66 SECTION 30. Section 164.021(b), Agriculture Code, is amended
8-67 to read as follows:
8-68 (b) An order of the commission under this section must be
8-69 signed by the commission or the presiding officer <chairman> of the
8-70 commission and must contain the following:
9-1 (1) the date of issuance;
9-2 (2) the name of the person to whom the order is made;
9-3 (3) the approximate location of the premises on which
9-4 the animals are located;
9-5 (4) the county in which the premises are located;
9-6 (5) a statement in clear and intelligible language
9-7 that the sheep or cattle that the person owns, controls, or cares
9-8 for are infected with or exposed to scabies;
9-9 (6) an order directing the person to dip the animals,
9-10 under the supervision of an inspector and in the manner prescribed
9-11 by the commission, in a dipping solution provided by this chapter
9-12 or in a designated solution approved for that purpose by rule of
9-13 the commission; and
9-14 (7) a designation of the date, time, and place that
9-15 the dipping is to occur.
9-16 SECTION 31. Sections 164.022(a) and (b), Agriculture Code,
9-17 are amended to read as follows:
9-18 (a) Not later than the fifth day following the day on which
9-19 a person receives an order to dip cattle or sheep, the person may
9-20 file with the commission or the presiding officer <chairman> of the
9-21 commission a written affidavit that:
9-22 (1) denies that the animals are subject to being
9-23 dipped under this chapter, or states that, for good and sufficient
9-24 reason set out in the affidavit, the person is entitled to have the
9-25 order rescinded or the dipping postponed; and
9-26 (2) requests that the commission withhold enforcement
9-27 of the order and grant a hearing on the matter or investigate the
9-28 matter as necessary to determine the correctness of the statement
9-29 contained in the affidavit.
9-30 (b) Not later than the fifth day following the day on which
9-31 the commission receives an affidavit under Subsection (a) of this
9-32 section, the commission shall, if desired by the affiant, grant the
9-33 affiant a hearing in the office of the presiding officer
9-34 <chairman>. The commission shall give the affiant notice of the
9-35 hearing by telegram or registered mail and shall hold the hearing
9-36 not earlier than the fourth day following the day of giving that
9-37 notice.
9-38 SECTION 32. Section 167.052(a), Agriculture Code, is amended
9-39 to read as follows:
9-40 (a) The commission may order the owner, part owner, or
9-41 caretaker of livestock to dip the livestock in accordance with the
9-42 directions of the commission. The order must be dated, in writing,
9-43 and signed or stamped with the signature of the commission or the
9-44 presiding officer of the commission <chairman>.
9-45 SECTION 33. Section 167.059(c), Agriculture Code, is amended
9-46 to read as follows:
9-47 (c) For the purpose of acquiring necessary land for the
9-48 construction or maintenance of dipping facilities, for the purpose
9-49 of acquiring dipping facilities that have already been constructed,
9-50 or for the purpose of acquiring land necessary for ingress and
9-51 egress to and from those facilities, a commissioners court has the
9-52 power of eminent domain. The commissioners court shall exercise
9-53 the power of eminent domain in the manner provided by law for
9-54 acquiring land for the building and maintenance of public
9-55 buildings, except that the court shall institute and prosecute
9-56 condemnation proceedings on written request from the presiding
9-57 officer <chairman> of the commission. The request from the
9-58 commission shall designate:
9-59 (1) the land to be condemned and its location;
9-60 (2) the name of the owner of the land to be condemned;
9-61 and
9-62 (3) the easement to be acquired for ingress and
9-63 egress.
9-64 SECTION 34. Section 167.109(a), Agriculture Code, is amended
9-65 to read as follows:
9-66 (a) A copy of a written instrument issued by the commission
9-67 is admissible as evidence in any court of this state if the copy is
9-68 certified by the presiding officer <chairman> of the commission.
9-69 SECTION 35. (a) The change in law made by this Act by the
9-70 addition of Section 161.021(d), Agriculture Code, applies only to a
10-1 public member appointed on or after September 1, 1995. A public
10-2 member appointed before that date is governed by the law in effect
10-3 when the appointment was made, and the former law is continued in
10-4 effect for that purpose.
10-5 (b) The change in law made by this Act by the addition of
10-6 Section 161.023, Agriculture Code, applies only to a member of the
10-7 commission who takes office on or after September 1, 1995. A
10-8 member of the commission who takes office before that date is
10-9 governed by the law in effect when the member took office, and the
10-10 former law is continued in effect for that purpose.
10-11 (c) The change in law made by Sections 24, 25, 26, and 27 of
10-12 this Act apply only to an offense committed on or after the
10-13 effective date of this Act. For purposes of this section, an
10-14 offense is committed before the effective date of this Act if any
10-15 element of the offense occurs before the effective date. An
10-16 offense committed before the effective date of this Act is covered
10-17 by the law in effect when the offense was committed, and the former
10-18 law is continued in effect for that purpose.
10-19 SECTION 36. This Act takes effect September 1, 1995.
10-20 SECTION 37. The importance of this legislation and the
10-21 crowded condition of the calendars in both houses create an
10-22 emergency and an imperative public necessity that the
10-23 constitutional rule requiring bills to be read on three several
10-24 days in each house be suspended, and this rule is hereby suspended.
10-25 * * * * *