By Sibley S.B. No. 1292
74R3701 JRD-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to administrative penalties assessed by the Department of
1-3 Agriculture.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Sections 12.020(c), (d), (i), (k), and (n),
1-6 Agriculture Code, are amended to read as follows:
1-7 (c) The provisions of this code subject to this section and
1-8 the applicable penalty amounts are as follows:
1-9 Provision Maximum Penalty
1-10 Chapters 13, 14, 18, 61, 94, 95
1-11 101, 102, 103, 121, 125, <and> 132, and 134 $500
1-12 Subchapter B, Chapter 71
1-13 Chapters 75 and 76 $2,000
1-14 Subchapters A and C, Chapter 71
1-15 Chapters 72, 73, and 74 $5,000.
1-16 (d) In determining the amount of the penalty, the department
1-17 shall consider:
1-18 (1) the seriousness of the violation, including but
1-19 not limited to the nature, circumstances, extent, and gravity of
1-20 the prohibited acts, and the hazard or potential hazard created to
1-21 the health or safety of the public;
1-22 (2) the <economic> damage to property or the
1-23 environment caused by the violation;
1-24 (3) the history of previous violations;
2-1 (4) the amount necessary to deter future violations;
2-2 (5) efforts to correct the violation; and
2-3 (6) any other matter that justice may require.
2-4 (i) If the person charged requests a hearing or fails to
2-5 timely respond to the notice, the department shall set a hearing
2-6 and give notice of the hearing. The hearing shall be held by a
2-7 hearing examiner designated by the department. The hearing
2-8 examiner shall make findings of fact and conclusions of law and
2-9 promptly issue to the commissioner a proposal for decision as to
2-10 the occurrence of the violation, including a recommendation as to
2-11 the amount of the proposed penalty if a penalty is warranted.
2-12 Based on the findings of fact, conclusions of law, and
2-13 recommendations of the hearing examiner, the commissioner by order
2-14 may find a violation has occurred and may assess a penalty or may
2-15 find that no violation has occurred. All proceedings under this
2-16 subsection are subject to Chapter 2001, Government Code <the
2-17 Administrative Procedure and Texas Register Act (Article 6252-13a,
2-18 Vernon's Texas Civil Statutes)>.
2-19 (k) Within the 30-day period immediately following the day
2-20 on which the order becomes final as provided by Section
2-21 2001.144(a), Government Code <Subsection (c), Section 16,
2-22 Administrative Procedure and Texas Register Act (Article 6252-13a,
2-23 Vernon's Texas Civil Statutes)>, the person charged with the
2-24 penalty shall:
2-25 (1) pay the penalty in full; or
2-26 (2) if the person files a petition for judicial review
2-27 contesting either the amount of the penalty or the fact of the
3-1 violation or contesting both the fact of the violation and the
3-2 amount of the penalty:
3-3 (A) forward the amount to the department for
3-4 placement in an escrow account; or
3-5 (B) in lieu of payment into escrow, post with
3-6 the department a supersedeas bond in a form approved by the
3-7 department for the amount of the penalty, the bond to be effective
3-8 until all judicial review of the order or decision is final.
3-9 (n) Judicial review of the order or decision of the
3-10 department assessing the penalty shall be under the substantial
3-11 evidence rule and shall be instituted by filing a petition with a
3-12 district court in Travis County, as provided by Subchapter G,
3-13 Chapter 2001, Government Code <Section 19, Administrative Procedure
3-14 and Texas Register Act (Article 6252-13a, Vernon's Texas Civil
3-15 Statutes)>.
3-16 SECTION 2. Section 75.022(c), Agriculture Code, is amended
3-17 to read as follows:
3-18 (c) Section 12.020 <76.1555> of this code, which provides
3-19 for the assessment of administrative penalties, applies to a person
3-20 who violates this chapter or a rule or order adopted by the
3-21 department under this chapter.
3-22 SECTION 3. Section 76.1555, Agriculture Code, is amended to
3-23 read as follows:
3-24 Sec. 76.1555. Administrative Penalty. (a) If a person
3-25 violates a provision of Chapter 75 or 76 of this code administered
3-26 by the department or a rule or order adopted by the department
3-27 under either of those chapters, the department may assess an
4-1 administrative penalty against the person as provided by Section
4-2 12.020, except <this section.>
4-3 <(b) The penalty may be in an amount not to exceed $2,000
4-4 for each violation, provided> that the penalty shall not exceed
4-5 $4,000 for all violations related to a single incident.
4-6 (b) The department shall establish a schedule stating the
4-7 types of violations possible under Chapters 75 and 76 of this code
4-8 <and the maximum fine applicable to each type of violation>. The
4-9 department is not required to comply with Subchapter B, Chapter
4-10 2001, Government Code <Section 5, Administrative Procedure and
4-11 Texas Register Act (Article 6252-13a, Vernon's Texas Civil
4-12 Statutes)>, when establishing or revising the schedule. The
4-13 department shall publish the initial schedule and any subsequent
4-14 revision in the Texas Register before the schedule or revision is
4-15 implemented.
4-16 (c) <In determining the amount of the penalty, the
4-17 department shall consider:>
4-18 <(1) the seriousness of the violation, including but
4-19 not limited to the nature, circumstances, extent, and gravity of
4-20 the prohibited acts, and the hazard or potential hazard created to
4-21 the health or safety of the public;>
4-22 <(2) the economic damage to property or the
4-23 environment caused by the violation;>
4-24 <(3) the history of previous violations;>
4-25 <(4) the amount necessary to deter future violations;>
4-26 <(5) efforts to correct the violation; and>
4-27 <(6) any other matter that justice may require.>
5-1 <(d) If, after investigation of a possible violation and the
5-2 facts surrounding that possible violation, the department
5-3 determines that a violation has occurred, the department may issue
5-4 a violation report stating the facts on which the conclusion that a
5-5 violation occurred is based and may recommend that an
5-6 administrative penalty under this section be imposed on the person
5-7 charged and recommending the amount of that proposed penalty. The
5-8 department shall base the recommended amount of the proposed
5-9 penalty on the seriousness of the violation determined by
5-10 consideration of the factors set forth in Subsection (c) of this
5-11 section.>
5-12 <(e) Not later than the 14th day after the date on which the
5-13 report is issued, the department shall give written notice of the
5-14 report to the person charged. The notice shall include a brief
5-15 summary of the charges, a statement of the amount of the penalty,
5-16 if any is recommended, and a statement of the right of the person
5-17 charged to a hearing on the occurrence of the violation or the
5-18 amount of the penalty, or both the occurrence of the violation and
5-19 the amount of the penalty.>
5-20 <(f) Not later than the 20th day after the date on which
5-21 notice is received, the person charged either may accept the
5-22 determination of the department made under Subsection (d) of this
5-23 section, including the recommended penalty, or make a written
5-24 request for a hearing on the determination.>
5-25 <(g) If the person charged with the violation accepts the
5-26 determination of the department, the commissioner shall issue an
5-27 order approving the determination and ordering the payment of the
6-1 recommended penalty.>
6-2 <(h) If the person charged requests a hearing or fails to
6-3 timely respond to the notice, the department shall set a hearing
6-4 and give notice of the hearing. The hearing shall be held by a
6-5 hearing examiner designated by the department. The hearing
6-6 examiner shall make findings of fact and conclusions of law and
6-7 promptly issue to the commissioner a proposal for decision as to
6-8 the occurrence of the violation, including a recommendation as to
6-9 the amount of the proposed penalty if a penalty is warranted.
6-10 Based on the findings of fact, conclusions of law, and
6-11 recommendations of the hearing examiner, the commissioner by order
6-12 may find a violation has occurred and may assess a penalty or may
6-13 find that no violation has occurred. All proceedings under this
6-14 subsection are subject to the Administrative Procedure and Texas
6-15 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes).>
6-16 <(i) The department shall give notice of the commissioner's
6-17 order to the person charged. The notice shall include:>
6-18 <(1) the findings of fact and conclusions of law
6-19 separately stated;>
6-20 <(2) the amount of the penalty ordered, if any;>
6-21 <(3) a statement of the right of the person charged to
6-22 judicial review of the commissioner's order, if any; and>
6-23 <(4) other information required by law.>
6-24 <(j) Within the 30-day period immediately following the day
6-25 on which the order becomes final as provided by Section 16(c),
6-26 Administrative Procedure and Texas Register Act (Article 6252-13a,
6-27 Vernon's Texas Civil Statutes), the person charged with the penalty
7-1 shall:>
7-2 <(1) pay the penalty in full; or>
7-3 <(2) if the person files a petition for judicial
7-4 review contesting either the amount of the penalty or the fact of
7-5 the violation or contesting both the fact of the violation and the
7-6 amount of the penalty, post a supersedeas bond in a form approved
7-7 by the department for the amount of the penalty or $1,000,
7-8 whichever is less, the bond to be effective until all judicial
7-9 review of the order or decision is final.>
7-10 <(k) A bond under Subsection (j)(2) of this section must be
7-11 posted with the district clerk. The bond must be filed at the same
7-12 time the petition for judicial review is filed.>
7-13 <(l) If a person charged is financially unable to post a
7-14 supersedeas bond, the person may satisfy the requirements of
7-15 Subsection (j)(2) of this section by filing with the district clerk
7-16 an affidavit sworn by the person charged stating that the person is
7-17 financially unable to post a bond.>
7-18 <(m) Failure to post the bond or file the affidavit within
7-19 the time provided by Subsection (j) of this section results in a
7-20 waiver of all legal rights to judicial review. Also, if the person
7-21 charged fails to pay the penalty in full as provided under
7-22 Subsection (j)(1) of this section or post the bond or file the
7-23 affidavit as provided by Subsection (j) or (l) of this section, the
7-24 department may forward the matter to the attorney general for
7-25 enforcement.>
7-26 <(n) Judicial review of the order or decision of the
7-27 department assessing the penalty shall be under the substantial
8-1 evidence rule and shall be instituted by filing a petition with a
8-2 district court in Travis County, as provided by Section 19,
8-3 Administrative Procedure and Texas Register Act (Article 6252-13a,
8-4 Vernon's Texas Civil Statutes).>
8-5 <(o) On final judgment of the court and payment of any
8-6 penalties and costs assessed by the court, the department shall
8-7 execute a release of any supersedeas bond posted under this
8-8 section.>
8-9 <(p) A penalty collected under this section shall be
8-10 deposited in the state treasury to the credit of the General
8-11 Revenue Fund.>
8-12 <(q)> If the department elects to assess an administrative
8-13 penalty, no action for a civil penalty may be based on the same
8-14 violation or violations.
8-15 SECTION 4. Sections 125.016(d) and (h), Agriculture Code,
8-16 are amended to read as follows:
8-17 (d) After providing at least 14 days' written notice and an
8-18 opportunity for a public hearing, the department may issue an
8-19 enforcement order requiring any employer or chemical manufacturer
8-20 covered by this chapter to comply with this chapter or rules
8-21 adopted under this chapter. <In addition, if the employer or
8-22 chemical manufacturer fails to comply with this chapter or rules
8-23 adopted under this chapter within 14 days after receiving the
8-24 written notice under this subsection, or fails at any time to
8-25 comply with an enforcement order issued under this chapter, the
8-26 department may require the employer or chemical manufacturer to pay
8-27 an administrative penalty of not more than $500 for each act that
9-1 is a violation of this chapter or a rule adopted or enforcement
9-2 order issued under this chapter.> A public hearing held under this
9-3 subsection is a contested case under Chapter 2001, Government Code
9-4 <the Administrative Procedure and Texas Register Act (Article
9-5 6252-13a, Vernon's Texas Civil Statutes)>, and may be appealed
9-6 under that chapter <Act>. In the case of a medical emergency, the
9-7 department may issue an enforcement order immediately and shall
9-8 provide the opportunity for a hearing on the order within 10 days
9-9 after the date on which the order is issued.
9-10 (h) The department may request the attorney general to
9-11 represent the department in any legal proceeding authorized under
9-12 this chapter. An action for civil or criminal penalties or
9-13 injunctive relief shall be brought in the county in which the
9-14 alleged violation occurred or is occurring.
9-15 SECTION 5. The changes in law made by this Act apply only to
9-16 an action to collect an administrative penalty that is commenced on
9-17 or after the effective date of this Act. An action to collect an
9-18 administrative penalty that is commenced before the effective date
9-19 of this Act is governed by the law in effect on the date the action
9-20 was commenced, and the former law is continued in effect for this
9-21 purpose.
9-22 SECTION 6. This Act takes effect September 1, 1995.
9-23 SECTION 7. The importance of this legislation and the
9-24 crowded condition of the calendars in both houses create an
9-25 emergency and an imperative public necessity that the
9-26 constitutional rule requiring bills to be read on three several
9-27 days in each house be suspended, and this rule is hereby suspended.