By Ratliff S.B. No. 784
74R6845 JMM-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the imposition of an administrative penalty for certain
1-3 violations by an engineer.
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 22C to read as follows:
1-8 Sec. 22C. (a) The Board may impose an administrative penalty
1-9 against a person registered under this Act or any other person who
1-10 violates this Act or a rule or order adopted under this Act.
1-11 (b) The penalty for a violation may be in an amount not to
1-12 exceed $5,000. Each day a violation continues or occurs is a
1-13 separate violation for purposes of imposing a penalty.
1-14 (c) The amount of the penalty shall be based on:
1-15 (1) the seriousness of the violation, including the
1-16 nature, circumstances, extent, and gravity of any prohibited acts,
1-17 and the hazard or potential hazard created to the health, safety,
1-18 or economic welfare of the public;
1-19 (2) the economic harm to property or the environment
1-20 caused by the violation;
1-21 (3) the history of previous violations;
1-22 (4) the amount necessary to deter future violations;
1-23 (5) efforts to correct the violation; and
1-24 (6) any other matter that justice may require.
2-1 (d) On the determination by the director of the Board that a
2-2 violation has occurred, the director may issue to the Board a
2-3 report that states the facts on which the determination is based
2-4 and the director's recommendation on the imposition of a penalty,
2-5 including a recommendation on the amount of the penalty.
2-6 (e) Within 14 days after the date the report is issued, the
2-7 director shall give written notice of the report to the person.
2-8 The notice may be given by certified mail. The notice must include
2-9 a brief summary of the alleged violation and a statement of the
2-10 amount of the recommended penalty and must inform the person that
2-11 the person has a right to a hearing on the occurrence of the
2-12 violation, the amount of the penalty, or both the occurrence of the
2-13 violation and the amount of the penalty.
2-14 (f) Within 20 days after the date the person receives the
2-15 notice, the person in writing may accept the determination and
2-16 recommended penalty of the director or may make a written request
2-17 for a hearing on the occurrence of the violation, the amount of the
2-18 penalty, or both the occurrence of the violation and the amount of
2-19 the penalty.
2-20 (g) If the person accepts the determination and recommended
2-21 penalty of the director, the Board by order shall approve the
2-22 determination and impose the recommended penalty.
2-23 (h) If the person requests a hearing or fails to respond
2-24 timely to the notice, the director shall set a hearing and give
2-25 notice of the hearing to the person. The hearing shall be held by
2-26 an administrative law judge of the State Office of Administrative
2-27 Hearings. The administrative law judge shall make findings of fact
3-1 and conclusions of law and promptly issue to the Board a proposal
3-2 for a decision about the occurrence of the violation and the amount
3-3 of a proposed penalty. Based on the findings of fact, conclusions
3-4 of law, and proposal for a decision, the Board by order may find
3-5 that a violation has occurred and impose a penalty or may find that
3-6 no violation occurred.
3-7 (i) The notice of the Board's order given to the person
3-8 under Chapter 2001, Government Code, must include a statement of
3-9 the right of the person to judicial review of the order.
3-10 (j) Within 30 days after the date the Board's order becomes
3-11 final as provided by Section 2001.144, Government Code, the person
3-12 shall:
3-13 (1) pay the amount of the penalty;
3-14 (2) pay the amount of the penalty and file a petition
3-15 for judicial review contesting the occurrence of the violation, the
3-16 amount of the penalty, or both the occurrence of the violation and
3-17 the amount of the penalty; or
3-18 (3) without paying the amount of the penalty, file a
3-19 petition for judicial review contesting the occurrence of the
3-20 violation, the amount of the penalty, or both the occurrence of the
3-21 violation and the amount of the penalty.
3-22 (k) Within the 30-day period, a person who acts under
3-23 Subsection (j)(3) of this section may:
3-24 (1) stay enforcement of the penalty by:
3-25 (A) paying the amount of the penalty to the
3-26 court for placement in an escrow account; or
3-27 (B) giving to the court a supersedeas bond that
4-1 is approved by the court for the amount of the penalty and that is
4-2 effective until all judicial review of the Board's order is final;
4-3 or
4-4 (2) request the court to stay enforcement of the
4-5 penalty by:
4-6 (A) filing with the court a sworn affidavit of
4-7 the person stating that the person is financially unable to pay the
4-8 amount of the penalty and is financially unable to give the
4-9 supersedeas bond; and
4-10 (B) giving a copy of the affidavit to the
4-11 executive director by certified mail.
4-12 (l) On receipt by the director of a copy of an affidavit
4-13 under Subsection (k)(2) of this section, the director may file with
4-14 the court, within five days after the date the copy is received, a
4-15 contest to the affidavit. The court shall hold a hearing on the
4-16 facts alleged in the affidavit as soon as practicable and shall
4-17 stay the enforcement of the penalty on finding that the alleged
4-18 facts are true. The person who files an affidavit has the burden
4-19 of proving that the person is financially unable to pay the amount
4-20 of the penalty and to give a supersedeas bond.
4-21 (m) If the person does not pay the amount of the penalty and
4-22 the enforcement of the penalty is not stayed, the director may
4-23 refer the matter to the attorney general for collection of the
4-24 amount of the penalty.
4-25 (n) Judicial review of the order of the Board:
4-26 (1) is instituted by filing a petition as provided by
4-27 Subchapter G, Chapter 2001, Government Code; and
5-1 (2) is under the substantial evidence rule.
5-2 (o) If the court sustains the occurrence of the violation,
5-3 the court may uphold or reduce the amount of the penalty and order
5-4 the person to pay the full or reduced amount of the penalty. If
5-5 the court does not sustain the occurrence of the violation, the
5-6 court shall order that no penalty is owed.
5-7 (p) When the judgment of the court becomes final, the court
5-8 shall proceed under this subsection. If the person paid the amount
5-9 of the penalty and if that amount is reduced or is not upheld by
5-10 the court, the court shall order that the appropriate amount plus
5-11 accrued interest be remitted to the person. The rate of the
5-12 interest is the rate charged on loans to depository institutions by
5-13 the New York Federal Reserve Bank, and the interest shall be paid
5-14 for the period beginning on the date the penalty was paid and
5-15 ending on the date the penalty is remitted. If the person gave a
5-16 supersedeas bond and if the amount of the penalty is not upheld by
5-17 the court, the court shall order the release of the bond. If the
5-18 person gave a supersedeas bond and if the amount of the penalty is
5-19 reduced, the court shall order the release of the bond after the
5-20 person pays the amount.
5-21 (q) A penalty collected under this section shall be remitted
5-22 to the comptroller for deposit in the general revenue fund.
5-23 (r) All proceedings under this section are subject to
5-24 Chapter 2001, Government Code.
5-25 SECTION 2. This Act takes effect September 1, 1995, and
5-26 applies only to a violation of The Texas Engineering Practice Act
5-27 (Article 3271a, Vernon's Texas Civil Statutes) or a rule adopted
6-1 under that Act that occurs on or after that date. A violation that
6-2 occurs before that date is governed by the law in effect on the
6-3 date the violation occurred, and the former law is continued in
6-4 effect for that purpose.
6-5 SECTION 3. The importance of this legislation and the
6-6 crowded condition of the calendars in both houses create an
6-7 emergency and an imperative public necessity that the
6-8 constitutional rule requiring bills to be read on three several
6-9 days in each house be suspended, and this rule is hereby suspended.