1-1 By: Madla S.B. No. 656
1-2 (In the Senate - Filed February 20, 1995; February 21, 1995,
1-3 read first time and referred to Committee on Health and Human
1-4 Services; April 18, 1995, reported favorably by the following vote:
1-5 Yeas 8, Nays 0; April 18, 1995, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to the authority of the Texas State Board of Pharmacy to
1-9 impose administrative penalties.
1-10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-11 SECTION 1. Subsections (d) through (s), Section 28B, Texas
1-12 Pharmacy Act (Article 4542a-1, Vernon's Texas Civil Statutes), are
1-13 amended to read as follows:
1-14 (d) The board by rule shall prescribe procedures, consistent
1-15 with the provisions of Chapter 2001, Government Code
1-16 (Administrative Procedure Act), relating to contested cases, by
1-17 which the board may impose an administrative penalty <executive
1-18 director, or staff designee, on determination that a violation has
1-19 occurred may issue to the board a report that states the facts on
1-20 which the determination is based and the director's recommendation
1-21 on the imposition of a penalty, including a recommendation on the
1-22 amount of the penalty>.
1-23 (e) If the board by order finds that a violation has
1-24 occurred and imposes an administrative penalty, the board shall
1-25 give notice to the person of the board's order. The notice must
1-26 include a statement of the right of the person to judicial review
1-27 of the order.
1-28 (f) <Within 14 days after the date the report is approved by
1-29 the board and issued, the executive director shall give written
1-30 notice of the report to the person. The notice may be given by
1-31 certified mail. The notice must include a brief summary of the
1-32 alleged violation and a statement of the amount of the recommended
1-33 penalty and must inform the person that the person has a right to a
1-34 hearing on the occurrence of the violation, the amount of the
1-35 penalty, or both the occurrence of the violation and the amount of
1-36 the penalty.>
1-37 <(f) Within 20 days after the date the person receives the
1-38 notice, the person in writing may accept the determination and
1-39 recommended penalty of the executive director or may make a written
1-40 request for a hearing on the occurrence of the violation, the
1-41 amount of the penalty, or both the occurrence of the violation and
1-42 the amount of the penalty.>
1-43 <(g) If the person accepts the determination and recommended
1-44 penalty of the executive director, the board by order shall approve
1-45 the determination and impose the recommended penalty.>
1-46 <(h) If the person requests a hearing or fails to respond
1-47 timely to the notice, the executive director shall set a hearing
1-48 and give notice of the hearing to the person. The hearing shall be
1-49 held by the board, except that a hearing involving the diversion of
1-50 controlled substances shall be held by an administrative law judge
1-51 of the State Office of Administrative Hearings. The board or the
1-52 administrative law judge, as appropriate, shall make findings of
1-53 fact and conclusions of law and, if the hearing is held by an
1-54 administrative law judge, the judge promptly shall issue to the
1-55 board a proposal for a decision about the occurrence of the
1-56 violation and the amount of a proposed penalty. Based on the
1-57 findings of fact, conclusions of law, and any proposal for a
1-58 decision, the board by order may find that a violation has occurred
1-59 and impose a penalty or may find that no violation occurred.>
1-60 <(i) The notice of the board's order given to the person
1-61 under the Administrative Procedure and Texas Register Act (Article
1-62 6252-13a, Vernon's Texas Civil Statutes) and its subsequent
1-63 amendments must include a statement of the right of the person to
1-64 judicial review of the order.>
1-65 <(j)> Within 30 days after the date the board's order is
1-66 final as provided by Section 2001.144, Government Code <16(c),
1-67 Administrative Procedure and Texas Register Act (Article 6252-13a,
1-68 Vernon's Texas Civil Statutes), and its subsequent amendments>, the
2-1 person shall:
2-2 (1) pay the amount of the penalty;
2-3 (2) pay the amount of the penalty and file a petition
2-4 for judicial review contesting the occurrence of the violation, the
2-5 amount of the penalty, or both the occurrence of the violation and
2-6 the amount of the penalty; or
2-7 (3) without paying the amount of the penalty, file a
2-8 petition for judicial review contesting the occurrence of the
2-9 violation, the amount of the penalty, or both the occurrence of the
2-10 violation and the amount of the penalty.
2-11 (g) <(k)> Within the 30-day period, a person who acts under
2-12 Subsection (f)(3) <(j)(3)> of this section may:
2-13 (1) stay enforcement of the penalty by:
2-14 (A) paying the amount of the penalty to the
2-15 court for placement in an escrow account; or
2-16 (B) giving to the court a supersedeas bond
2-17 approved by the court for the amount of the penalty and that is
2-18 effective until all judicial review of the board's order is final;
2-19 or
2-20 (2) request the court to stay enforcement of the
2-21 penalty by:
2-22 (A) filing with the court a sworn affidavit of
2-23 the person stating that the person is financially unable to pay the
2-24 amount of the penalty and is financially unable to give the
2-25 supersedeas bond; and
2-26 (B) giving a copy of the affidavit to the
2-27 executive director by certified mail.
2-28 (h) <(l)> An executive director who receives a copy of an
2-29 affidavit under Subsection (g)(2) <(k)(2)> of this section may file
2-30 with the court, within five days after the date the copy is
2-31 received, a contest to the affidavit. The court shall hold a
2-32 hearing on the facts alleged in the affidavit as soon as
2-33 practicable and shall stay the enforcement of the penalty on
2-34 finding that the alleged facts are true. The person who files an
2-35 affidavit has the burden of proving that the person is financially
2-36 unable to pay the amount of the penalty and to give a supersedeas
2-37 bond.
2-38 (i) <(m)> If the person does not pay the amount of the
2-39 penalty and the enforcement of the penalty is not stayed, the
2-40 executive director may refer the matter to the attorney general for
2-41 collection of the amount of the penalty.
2-42 (j) <(n) Judicial review of the order of the board:>
2-43 <(1) is instituted by filing a petition as provided by
2-44 Section 19, Administrative Procedure and Texas Register Act
2-45 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
2-46 subsequent amendments; and>
2-47 <(2) is under the substantial evidence rule.>
2-48 <(o)> If the court sustains the occurrence of the violation
2-49 on appeal, the court may uphold or reduce the amount of the penalty
2-50 and order the person to pay the full or reduced amount of the
2-51 penalty. If the court does not sustain the occurrence of the
2-52 violation, the court shall order that no penalty is owed.
2-53 (k) <(p)> When the judgment of the court becomes final, the
2-54 court shall proceed under this subsection. If the person paid the
2-55 amount of the penalty and if that amount is reduced or is not
2-56 upheld by the court, the court shall order that the appropriate
2-57 amount plus accrued interest be remitted to the person. The rate
2-58 of the interest is the rate charged on loans to depository
2-59 institutions by the New York Federal Reserve Bank, and the interest
2-60 shall be paid for the period beginning on the date the penalty was
2-61 paid and ending on the date the penalty is remitted. If the person
2-62 gave a supersedeas bond and if the amount of the penalty is not
2-63 upheld by the court, the court shall order the release of the bond.
2-64 If the person gave a supersedeas bond and if the amount of the
2-65 penalty is reduced, the court shall order the release of the bond
2-66 after the person pays the amount.
2-67 (l) <(q)> A penalty collected under this section shall be
2-68 remitted to the comptroller for deposit in the general revenue
2-69 fund.
2-70 (m) <(r)> All proceedings under this section are subject to
3-1 Chapter 2001, Government Code <the Administrative Procedure and
3-2 Texas Register Act (Article 6252-13a, Vernon's Texas Civil
3-3 Statutes) and its subsequent amendments>.
3-4 (n) <(s)> This section does not limit the ability of the
3-5 board to impose an administrative penalty pursuant to a consent
3-6 order entered in accordance with board rules and requirements of
3-7 Section 17D of this Act.
3-8 SECTION 2. This Act takes effect September 1, 1995.
3-9 SECTION 3. The importance of this legislation and the
3-10 crowded condition of the calendars in both houses create an
3-11 emergency and an imperative public necessity that the
3-12 constitutional rule requiring bills to be read on three several
3-13 days in each house be suspended, and this rule is hereby suspended.
3-14 * * * * *