By Madla S.B. No. 656
74R5585 CAG-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the authority of the Texas State Board of Pharmacy to
1-3 impose administrative penalties.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Subsections (d)-(s), Section 28B, Texas Pharmacy
1-6 Act (Article 4542a-1, Vernon's Texas Civil Statutes), are amended
1-7 to read as follows:
1-8 (d) The board by rule shall prescribe procedures, consistent
1-9 with the provisions of Chapter 2001, Government Code, relating to
1-10 contested cases, by which the board may impose an administrative
1-11 penalty <executive director, or staff designee, on determination
1-12 that a violation has occurred may issue to the board a report that
1-13 states the facts on which the determination is based and the
1-14 director's recommendation on the imposition of a penalty, including
1-15 a recommendation on the amount of the penalty>.
1-16 (e) If the board by order finds that a violation has
1-17 occurred and imposes an administrative penalty, the board shall
1-18 give notice to the person of the board's order. The notice must
1-19 include a statement of the right of the person to judicial review
1-20 of the order. <Within 14 days after the date the report is
1-21 approved by the board and issued, the executive director shall give
1-22 written notice of the report to the person. The notice may be
1-23 given by certified mail. The notice must include a brief summary
1-24 of the alleged violation and a statement of the amount of the
2-1 recommended penalty and must inform the person that the person has
2-2 a right to a hearing on the occurrence of the violation, the amount
2-3 of the penalty, or both the occurrence of the violation and the
2-4 amount of the penalty.>
2-5 <(f) Within 20 days after the date the person receives the
2-6 notice, the person in writing may accept the determination and
2-7 recommended penalty of the executive director or may make a written
2-8 request for a hearing on the occurrence of the violation, the
2-9 amount of the penalty, or both the occurrence of the violation and
2-10 the amount of the penalty.>
2-11 <(g) If the person accepts the determination and recommended
2-12 penalty of the executive director, the board by order shall approve
2-13 the determination and impose the recommended penalty.>
2-14 <(h) If the person requests a hearing or fails to respond
2-15 timely to the notice, the executive director shall set a hearing
2-16 and give notice of the hearing to the person. The hearing shall be
2-17 held by the board, except that a hearing involving the diversion of
2-18 controlled substances shall be held by an administrative law judge
2-19 of the State Office of Administrative Hearings. The board or the
2-20 administrative law judge, as appropriate, shall make findings of
2-21 fact and conclusions of law and, if the hearing is held by an
2-22 administrative law judge, the judge promptly shall issue to the
2-23 board a proposal for a decision about the occurrence of the
2-24 violation and the amount of a proposed penalty. Based on the
2-25 findings of fact, conclusions of law, and any proposal for a
2-26 decision, the board by order may find that a violation has occurred
2-27 and impose a penalty or may find that no violation occurred.>
3-1 <(i) The notice of the board's order given to the person
3-2 under the Administrative Procedure and Texas Register Act (Article
3-3 6252-13a, Vernon's Texas Civil Statutes) and its subsequent
3-4 amendments must include a statement of the right of the person to
3-5 judicial review of the order.>
3-6 (f) <(j)> Within 30 days after the date the board's order is
3-7 final as provided by Section 2001.144, Government Code <16(c),
3-8 Administrative Procedure and Texas Register Act (Article 6252-13a,
3-9 Vernon's Texas Civil Statutes), and its subsequent amendments>, the
3-10 person shall:
3-11 (1) pay the amount of the penalty;
3-12 (2) pay the amount of the penalty and file a petition
3-13 for judicial review contesting the occurrence of the violation, the
3-14 amount of the penalty, or both the occurrence of the violation and
3-15 the amount of the penalty; or
3-16 (3) without paying the amount of the penalty, file a
3-17 petition for judicial review contesting the occurrence of the
3-18 violation, the amount of the penalty, or both the occurrence of the
3-19 violation and the amount of the penalty.
3-20 (g) <(k)> Within the 30-day period, a person who acts under
3-21 Subsection (f)(3) <(j)(3)> of this section may:
3-22 (1) stay enforcement of the penalty by:
3-23 (A) paying the amount of the penalty to the
3-24 court for placement in an escrow account; or
3-25 (B) giving to the court a supersedeas bond
3-26 approved by the court for the amount of the penalty and that is
3-27 effective until all judicial review of the board's order is final;
4-1 or
4-2 (2) request the court to stay enforcement of the
4-3 penalty by:
4-4 (A) filing with the court a sworn affidavit of
4-5 the person stating that the person is financially unable to pay the
4-6 amount of the penalty and is financially unable to give the
4-7 supersedeas bond; and
4-8 (B) giving a copy of the affidavit to the
4-9 executive director by certified mail.
4-10 (h) <(l)> An executive director who receives a copy of an
4-11 affidavit under Subsection (g)(2) <(k)(2)> of this section may file
4-12 with the court, within five days after the date the copy is
4-13 received, a contest to the affidavit. The court shall hold a
4-14 hearing on the facts alleged in the affidavit as soon as
4-15 practicable and shall stay the enforcement of the penalty on
4-16 finding that the alleged facts are true. The person who files an
4-17 affidavit has the burden of proving that the person is financially
4-18 unable to pay the amount of the penalty and to give a supersedeas
4-19 bond.
4-20 (i) <(m)> If the person does not pay the amount of the
4-21 penalty and the enforcement of the penalty is not stayed, the
4-22 executive director may refer the matter to the attorney general for
4-23 collection of the amount of the penalty.
4-24 <(n) Judicial review of the order of the board:>
4-25 <(1) is instituted by filing a petition as provided by
4-26 Section 19, Administrative Procedure and Texas Register Act
4-27 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
5-1 subsequent amendments; and>
5-2 <(2) is under the substantial evidence rule.>
5-3 (j) <(o)> If the court sustains the occurrence of the
5-4 violation on appeal, the court may uphold or reduce the amount of
5-5 the penalty and order the person to pay the full or reduced amount
5-6 of the penalty. If the court does not sustain the occurrence of
5-7 the violation, the court shall order that no penalty is owed.
5-8 (k) <(p)> When the judgment of the court becomes final, the
5-9 court shall proceed under this subsection. If the person paid the
5-10 amount of the penalty and if that amount is reduced or is not
5-11 upheld by the court, the court shall order that the appropriate
5-12 amount plus accrued interest be remitted to the person. The rate
5-13 of the interest is the rate charged on loans to depository
5-14 institutions by the New York Federal Reserve Bank, and the interest
5-15 shall be paid for the period beginning on the date the penalty was
5-16 paid and ending on the date the penalty is remitted. If the person
5-17 gave a supersedeas bond and if the amount of the penalty is not
5-18 upheld by the court, the court shall order the release of the bond.
5-19 If the person gave a supersedeas bond and if the amount of the
5-20 penalty is reduced, the court shall order the release of the bond
5-21 after the person pays the amount.
5-22 (l) <(q)> A penalty collected under this section shall be
5-23 remitted to the comptroller for deposit in the general revenue
5-24 fund.
5-25 (m) <(r)> All proceedings under this section are subject to
5-26 Chapter 2001, Government Code <the Administrative Procedure and
5-27 Texas Register Act (Article 6252-13a, Vernon's Texas Civil
6-1 Statutes) and its subsequent amendments>.
6-2 (n) <(s)> This section does not limit the ability of the
6-3 board to impose an administrative penalty pursuant to a consent
6-4 order entered in accordance with board rules and requirements of
6-5 Section 17D of this Act.
6-6 SECTION 2. This Act takes effect September 1, 1995.
6-7 SECTION 3. The importance of this legislation and the
6-8 crowded condition of the calendars in both houses create an
6-9 emergency and an imperative public necessity that the
6-10 constitutional rule requiring bills to be read on three several
6-11 days in each house be suspended, and this rule is hereby suspended.