Amend SB 665 as follows:
(1) On page 7, between lines 9 and 10, add a new Sec. 7A to
read as follows:
"Sec. 7A. ADMINISTRATIVE PENALTY. (a) The commissioner of
agriculture may impose an administrative penalty against a person
licensed or regulated under this Act who violates this Act or a
rule or order adopted under this Act.
(b) The penalty for a violation may be in an amount not to
exceed $500. Each day a violation continues or occurs is a
separate violation for purposes of imposing a penalty.
(c) The amount of the penalty shall be based on:
(1) the seriousness of the violation, including the
nature, circumstances, extent, and gravity of any prohibited acts,
and the hazard or potential hazard created to the health, safety,
or economic welfare of the public;
(2) the economic harm to property or the environment
caused by the violation;
(3) the history of previous violations;
(4) the amount necessary to deter future violations;
(5) efforts to correct the violation; and
(6) any other matter that justice may require.
(d) An employee of the Department of Agriculture designated
by the commissioner to act under this section who determines that a
violation has occurred may issue to the commissioner of agriculture
a report that states the facts on which the determination is based
and the designated employee's recommendation on the imposition of a
penalty, including a recommendation on the amount of the penalty.
(e) Within 14 days after the date the report is issued, the
designated employee shall give written notice of the report to the
person. The notice may be given by certified mail. The notice
must include a brief summary of the alleged violation and a
statement of the amount of the recommended penalty and must inform
the person that the person has a right to a hearing on the
occurrence of the violation, the amount of the penalty, or both the
occurrence of the violation and the amount of the penalty.
(f) Within 20 days after the date the person receives the
notice, the person in writing may accept the determination and
recommended penalty of the designated employee or may make a
written request for a hearing on the occurrence of the violation,
the amount of the penalty, or both the occurrence of the violation
and the amount of the penalty.
(g) If the person accepts the determination and recommended
penalty of the designated employee, the commissioner of agriculture
by order shall approve the determination and impose the recommended
penalty.
(h) If the person requests a hearing or fails to respond
timely to the notice, the designated employee shall set a hearing
and give notice of the hearing to the person. The hearing shall be
held by an administrative law judge of the State Office of
Administrative Hearings. The administrative law judge shall make
findings of fact and conclusions of law and promptly issue to the
commissioner of agriculture a proposal for a decision about the
occurrence of the violation and the amount of a proposed penalty.
Based on the findings of fact, conclusions of law, and proposal for
a decision, the commissioner of agriculture by order may find that
a violation has occurred and impose a penalty or may find that no
violation occurred.
(i) The notice of the commissioner of agriculture's order
given to the person under Chapter 2001, Government Code, must
include a statement of the right of the person to judicial review
of the order.
(j) Within 30 days after the date the commissioner of
agriculture's order becomes final as provided by Section 2001.144,
Government Code, the person shall:
(1) pay the amount of the penalty;
(2) pay the amount of the penalty and file a petition
for judicial review contesting the occurrence of the violation, the
amount of the penalty, or both the occurrence of the violation and
the amount of the penalty; or
(3) without paying the amount of the penalty, file a
petition for judicial review contesting the occurrence of the
violation, the amount of the penalty, or both the occurrence of the
violation and the amount of the penalty.
(k) Within the 30-day period, a person who acts under
Subsection (j)(3) of this section may:
(1) stay enforcement of the penalty by:
(A) paying the amount of the penalty to the
court for placement in an escrow account; or
(B) giving to the court a supersedeas bond that
is approved by the court for the amount of the penalty and that is
effective until all judicial review of the commissioner of
agriculture's order is final; or
(2) request the court to stay enforcement of the
penalty by:
(A) filing with the court a sworn affidavit of
the person stating that the person is financially unable to pay the
amount of the penalty and is financially unable to give the
supersedeas bond; and
(B) giving a copy of the affidavit to the
designated employee by certified mail.
(l) A designated employee who receives a copy of an
affidavit under Subsection (k)(2) of this section may file with the
court, within five days after the date the copy is received, a
contest to the affidavit. The court shall hold a hearing on the
facts alleged in the affidavit as soon as practicable and shall
stay the enforcement of the penalty on finding that the alleged
facts are true. The person who files an affidavit has the burden
of proving that the person is financially unable to pay the amount
of the penalty and to give a supersedeas bond.
(m) If the person does not pay the amount of the penalty and
the enforcement of the penalty is not stayed, the designated
employee may refer the matter to the attorney general for
collection of the amount of the penalty.
(n) Judicial review of the order of the commissioner of
agriculture:
(1) is instituted by filing a petition as provided by
Subchapter G, Chapter 2001, Government Code; and
(2) is under the substantial evidence rule.
(o) If the court sustains the occurrence of the violation,
the court may uphold or reduce the amount of the penalty and order
the person to pay the full or reduced amount of the penalty. If
the court does not sustain the occurrence of the violation, the
court shall order that no penalty is owed.
(p) When the judgment of the court becomes final, the court
shall proceed under this subsection. If the person paid the amount
of the penalty and if that amount is reduced or is not upheld by
the court, the court shall order that the appropriate amount plus
accrued interest be remitted to the person. The rate of the
interest is the rate charged on loans to depository institutions by
the New York Federal Reserve Bank, and the interest shall be paid
for the period beginning on the date the penalty was paid and
ending on the date the penalty is remitted. If the person gave a
supersedeas bond and if the amount of the penalty is not upheld by
the court, the court shall order the release of the bond. If the
person gave a supersedeas bond and if the amount of the penalty is
reduced, the court shall order the release of the bond after the
person pays the amount.
(q) A penalty collected under this section shall be remitted
to the comptroller for deposit in the general revenue fund.
(r) All proceedings under this section are subject to
Chapter 2001, Government Code, except as provided by Subsections
(s) and (t).
(s) Notwithstanding Section 2001.058, Government Code, the
commissioner of agriculture may change a finding of fact or
conclusion of law made by the administrative law judge if the
commissioner of agriculture:
(1) determines that the administrative law judge:
(A) did not properly apply or interpret
applicable law, department rules or policies, or prior
administrative decisions; or
(B) issued a finding of fact that is not
supported by a preponderance of the evidence; or
(2) determines that a department policy or a prior
administrative decision on which the administrative law judge
relied is incorrect or should be changed.
(t) The commissioner of agriculture shall state in writing
the specific reason and legal basis for a determination under
Subsection (s)."
(2) Delete SECTION 13 in its entirety and renumber sections
accordingly.