By Davila H.B. No. 1715
75R6600 JMM-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the regulation of the practice of cosmetology;
1-3 providing an administrative penalty.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Subsection (l), Section 4, Chapter 1036, Acts of
1-6 the 62nd Legislature, Regular Session, 1971 (Article 8451a,
1-7 Vernon's Texas Civil Statutes), as added by Chapter 777, Acts of
1-8 the 73rd Legislature, Regular Session, 1993, is redesignated as
1-9 Subsection (m) and amended to read as follows:
1-10 (m) [(l)] The commission by rule shall establish and assess
1-11 on all persons and entities licensed or regulated under this Act
1-12 reasonable and necessary fees in amounts necessary to administer
1-13 this Act.
1-14 SECTION 2. Section 9, Chapter 1036, Acts of the 62nd
1-15 Legislature, Regular Session, 1971 (Article 8451a, Vernon's Texas
1-16 Civil Statutes), is amended by adding Subsection (e) to read as
1-17 follows:
1-18 (e) A license or certificate issued under this Act is not
1-19 transferable.
1-20 SECTION 3. Section 10(d), Chapter 1036, Acts of the 62nd
1-21 Legislature, Regular Session, 1971 (Article 8451a, Vernon's Texas
1-22 Civil Statutes), is amended to read as follows:
1-23 (d) The applicant is entitled to an operator license if he
1-24 possesses the qualifications enumerated in Subsection (b) of this
2-1 section, satisfactorily completes the examination, pays the [a $35]
2-2 license fee prescribed by the commission, and has not committed an
2-3 act that constitutes a ground for denial of a license.
2-4 SECTION 4. Section 11(d), Chapter 1036, Acts of the 62nd
2-5 Legislature, Regular Session, 1971 (Article 8451a, Vernon's Texas
2-6 Civil Statutes), is amended to read as follows:
2-7 (d) The applicant is entitled to a manicurist license if he
2-8 possesses the qualifications enumerated in Subsection (b) of this
2-9 section, satisfactorily completes the examination, pays the [a $35]
2-10 license fee prescribed by the commission, and has not committed an
2-11 act that constitutes a ground for denial of a license.
2-12 SECTION 5. Section 12(d), Chapter 1036, Acts of the 62nd
2-13 Legislature, Regular Session, 1971 (Article 8451a, Vernon's Texas
2-14 Civil Statutes), is amended to read as follows:
2-15 (d) The applicant is entitled to an instructor license if he
2-16 possesses qualifications enumerated in Subsection (b) of this
2-17 section, satisfactorily completes the examination, pays the [a $50]
2-18 license fee prescribed by the commission, and has not committed an
2-19 act that constitutes a ground for denial of a license.
2-20 SECTION 6. Section 13(d), Chapter 1036, Acts of the 62nd
2-21 Legislature, Regular Session, 1971 (Article 8451a, Vernon's Texas
2-22 Civil Statutes), is amended to read as follows:
2-23 (d) The applicant is entitled to a specialty certificate if
2-24 he possesses the qualifications enumerated in Subsection (b) of
2-25 this section, pays the [a $35] certificate fee prescribed by the
2-26 commission, and has not committed an act that constitutes a ground
2-27 for denial of a certificate.
3-1 SECTION 7. Section 13A(d), Chapter 1036, Acts of the 62nd
3-2 Legislature, Regular Session, 1971 (Article 8451a, Vernon's Texas
3-3 Civil Statutes), is amended to read as follows:
3-4 (d) The applicant is entitled to a facialist specialty
3-5 license if the applicant possesses the qualifications enumerated in
3-6 Subsection (b) of this section, satisfactorily completes the
3-7 examination, pays the [a $35] license fee prescribed by the
3-8 commission, and has not committed an act that constitutes a ground
3-9 for denial of a license.
3-10 SECTION 8. Section 15(b), Chapter 1036, Acts of the 62nd
3-11 Legislature, Regular Session, 1971 (Article 8451a, Vernon's Texas
3-12 Civil Statutes), is amended to read as follows:
3-13 (b) A temporary license shall be issued on submission of an
3-14 application form prescribed by the commission and payment of the [a
3-15 $45] temporary license fee prescribed by the commission if the
3-16 applicant meets the requirements of Subsection (a) of this section.
3-17 SECTION 9. Section 16, Chapter 1036, Acts of the 62nd
3-18 Legislature, Regular Session, 1971 (Article 8451a, Vernon's Texas
3-19 Civil Statutes), is amended to read as follows:
3-20 Sec. 16. DUPLICATE LICENSE OR CERTIFICATE. (a) A duplicate
3-21 license or certificate shall be issued upon application on a form
3-22 prescribed by the commission and on the payment of the [a $35] fee
3-23 prescribed by the commission.
3-24 (b) A transcript shall be given to licensees under this Act
3-25 upon application on a form prescribed by the commission and payment
3-26 of the [a $5] fee prescribed by the commission.
3-27 SECTION 10. Section 17(b), Chapter 1036, Acts of the 62nd
4-1 Legislature, Regular Session, 1971 (Article 8451a, Vernon's Texas
4-2 Civil Statutes), is amended to read as follows:
4-3 (b) The applicant shall submit an application on a form
4-4 prescribed by the commission and pay the [a $100] fee prescribed by
4-5 the commission, plus the applicable license or certification fee.
4-6 SECTION 11. Section 18(b), Chapter 1036, Acts of the 62nd
4-7 Legislature, Regular Session, 1971 (Article 8451a, Vernon's Texas
4-8 Civil Statutes), is amended to read as follows:
4-9 (b) A student permit shall be issued on submission of an
4-10 application form prescribed by the commission and payment of the [a
4-11 $25] fee prescribed by the commission which must accompany the
4-12 application.
4-13 SECTION 12. Sections 19(b) and (c), Chapter 1036, Acts of
4-14 the 62nd Legislature, Regular Session, 1971 (Article 8451a,
4-15 Vernon's Texas Civil Statutes), are amended to read as follows:
4-16 (b) An applicant for a beauty shop license must submit an
4-17 application on a form prescribed by the commission. The
4-18 application must contain proof of the particular requisites for a
4-19 beauty shop as established by the commission and must be verified
4-20 by the applicant. With the application, the applicant must submit
4-21 the [a $35] inspection fee prescribed by the commission.
4-22 (c) The applicant is entitled to a beauty shop license if
4-23 the application shows compliance with the rules of the commission,
4-24 the [a $45] license fee prescribed by the commission is paid, and
4-25 he has not committed an act that constitutes a ground for denial
4-26 of a license.
4-27 SECTION 13. Sections 20(b) and (c), Chapter 1036, Acts of
5-1 the 62nd Legislature, Regular Session, 1971 (Article 8451a,
5-2 Vernon's Texas Civil Statutes), are amended to read as follows:
5-3 (b) An applicant for a specialty shop license must submit an
5-4 application on a form prescribed by the commission. The
5-5 application must contain proof of the particular requisites for a
5-6 specialty shop as established by the commission and must be
5-7 verified by the applicant. With the application, the applicant
5-8 must submit the [a $35] inspection fee prescribed by the
5-9 commission.
5-10 (c) The applicant is entitled to a specialty shop license if
5-11 the application shows compliance with the rules and regulations of
5-12 the commission, the [a $45] license fee prescribed by the
5-13 commission is paid, and he has not committed an act that
5-14 constitutes a ground for denial of a license.
5-15 SECTION 14. Section 21(d), Chapter 1036, Acts of the 62nd
5-16 Legislature, Regular Session, 1971 (Article 8451a, Vernon's Texas
5-17 Civil Statutes), is amended to read as follows:
5-18 (d) Each application for a private beauty culture school
5-19 license must be accompanied by payment of the [a $500] license fee
5-20 and [a $200] inspection fee prescribed by the commission. Each
5-21 application for certification as a public secondary or public
5-22 postsecondary beauty culture school must be accompanied by the [a
5-23 $200] inspection fee prescribed by the commission. The inspection
5-24 fee is charged for each inspection trip required before approval of
5-25 the license or certificate.
5-26 SECTION 15. Sections 33(e)-(g), Chapter 1036, Acts of the
5-27 62nd Legislature, Regular Session, 1971 (Article 8451a, Vernon's
6-1 Texas Civil Statutes), are amended to read as follows:
6-2 (e) A license that has been expired for less than 30 days
6-3 may be renewed. A renewal license shall be issued on submission of
6-4 a completed application form prescribed by the commission and
6-5 payment of the renewal fee, plus the [a $10] delinquency fee
6-6 prescribed by the commission.
6-7 (f) Except as provided by Subsection (h) of this section, a
6-8 license that has been expired for more than 30 days but less than
6-9 five years may be renewed. A renewal license shall be issued on
6-10 submission of an application, payment of the fee established by
6-11 this Act for each year the license has been expired, and payment of
6-12 the [a] delinquency fee prescribed by the commission. [Delinquency
6-13 fees under this subsection are:]
6-14 [(1) operator or specialty license $25;]
6-15 [(2) instructor license $50;]
6-16 [(3) manicurist license $25; and]
6-17 [(4) beauty or specialty salon license $35.]
6-18 (g) An applicant for renewal of a license that has been
6-19 expired for more than five years shall be issued a license on
6-20 submission of an application, payment of the examination fee,
6-21 satisfactory completion of the examination, and payment of the [a
6-22 $50] reinstatement fee prescribed by the commission.
6-23 SECTION 16. Section 34(a), Chapter 1036, Acts of the 62nd
6-24 Legislature, Regular Session, 1971 (Article 8451a, Vernon's Texas
6-25 Civil Statutes), is amended to read as follows:
6-26 (a) The commission shall prescribe renewal [Renewal] fees
6-27 under this Act [are:]
7-1 [(1) Operator or specialty license $35;]
7-2 [(2) Instructor license $50;]
7-3 [(3) Manicurist license $35;]
7-4 [(4) Private beauty school license $200 per year;
7-5 and]
7-6 [(5) Beauty or specialty shop license $45].
7-7 SECTION 17. Chapter 1036, Acts of the 62nd Legislature,
7-8 Regular Session, 1971 (Article 8451a, Vernon's Texas Civil
7-9 Statutes), is amended by adding Section 35A to read as follows:
7-10 Sec. 35A. ADMINISTRATIVE PENALTY. (a) The commission may
7-11 impose an administrative penalty against a person licensed or
7-12 regulated under this Act who violates this Act or a rule or order
7-13 adopted under this Act.
7-14 (b) The penalty for a violation may be in an amount not to
7-15 exceed $1,000. Each day a violation continues or occurs is a
7-16 separate violation for purposes of imposing a penalty.
7-17 (c) The amount of the penalty shall be based on:
7-18 (1) the seriousness of the violation, including the
7-19 nature, circumstances, extent, and gravity of any prohibited acts,
7-20 and the hazard or potential hazard created to the health, safety,
7-21 or economic welfare of the public;
7-22 (2) the economic harm to property or the environment
7-23 caused by the violation;
7-24 (3) the history of previous violations;
7-25 (4) the amount necessary to deter future violations;
7-26 (5) efforts to correct the violation; and
7-27 (6) any other matter that justice may require.
8-1 (d) The executive director, on a determination that a
8-2 violation has occurred, may issue to the commission a report that
8-3 states the facts on which the determination is based and the
8-4 director's recommendation on the imposition of a penalty, including
8-5 a recommendation on the amount of the penalty.
8-6 (e) Within 14 days after the date the report is issued, the
8-7 executive director shall give written notice of the report to the
8-8 person. The notice may be given by certified mail. The notice
8-9 must include a brief summary of the alleged violation and a
8-10 statement of the amount of the recommended penalty and must inform
8-11 the person that the person has a right to a hearing on the
8-12 occurrence of the violation, the amount of the penalty, or both the
8-13 occurrence of the violation and the amount of the penalty.
8-14 (f) Within 20 days after the date the person receives the
8-15 notice, the person in writing may accept the determination and
8-16 recommended penalty of the executive director or may make a written
8-17 request for a hearing on the occurrence of the violation, the
8-18 amount of the penalty, or both the occurrence of the violation and
8-19 the amount of the penalty.
8-20 (g) If the person accepts the determination and recommended
8-21 penalty of the executive director, the commission by order shall
8-22 approve the determination and impose the recommended penalty.
8-23 (h) If the person requests a hearing or fails to respond
8-24 timely to the notice, the executive director shall set a hearing
8-25 and give notice of the hearing to the person. The hearing shall be
8-26 held by an administrative law judge of the State Office of
8-27 Administrative Hearings. The administrative law judge shall make
9-1 findings of fact and conclusions of law and promptly issue to the
9-2 commission a proposal for a decision about the occurrence of the
9-3 violation and the amount of a proposed penalty. Based on the
9-4 findings of fact, conclusions of law, and proposal for a decision,
9-5 the commission by order may find that a violation has occurred and
9-6 impose a penalty or may find that no violation occurred.
9-7 (i) The notice of the commission's order given to the person
9-8 under Chapter 2001, Government Code, must include a statement of
9-9 the right of the person to judicial review of the order.
9-10 (j) Within 30 days after the date the commission's order
9-11 becomes final as provided by Section 2001.144, Government Code, the
9-12 person shall:
9-13 (1) pay the amount of the penalty;
9-14 (2) pay the amount of the penalty and file a petition
9-15 for judicial review contesting the occurrence of the violation, the
9-16 amount of the penalty, or both the occurrence of the violation and
9-17 the amount of the penalty; or
9-18 (3) without paying the amount of the penalty, file a
9-19 petition for judicial review contesting the occurrence of the
9-20 violation, the amount of the penalty, or both the occurrence of the
9-21 violation and the amount of the penalty.
9-22 (k) Within the 30-day period, a person who acts under
9-23 Subsection (j)(3) of this section may:
9-24 (1) stay enforcement of the penalty by:
9-25 (A) paying the amount of the penalty to the
9-26 court for placement in an escrow account; or
9-27 (B) giving to the court a supersedeas bond that
10-1 is approved by the court for the amount of the penalty and that is
10-2 effective until all judicial review of the commission's order is
10-3 final; or
10-4 (2) request the court to stay enforcement of the
10-5 penalty by:
10-6 (A) filing with the court a sworn affidavit of
10-7 the person stating that the person is financially unable to pay the
10-8 amount of the penalty and is financially unable to give the
10-9 supersedeas bond; and
10-10 (B) giving a copy of the affidavit to the
10-11 executive director by certified mail.
10-12 (l) On receipt of a copy of an affidavit under Subsection
10-13 (k)(2) of this section, the executive director may file with the
10-14 court, within five days after the date the copy is received, a
10-15 contest to the affidavit. The court shall hold a hearing on the
10-16 facts alleged in the affidavit as soon as practicable and shall
10-17 stay the enforcement of the penalty on finding that the alleged
10-18 facts are true. The person who files an affidavit has the burden
10-19 of proving that the person is financially unable to pay the amount
10-20 of the penalty and to give a supersedeas bond.
10-21 (m) If the person does not pay the amount of the penalty and
10-22 the enforcement of the penalty is not stayed, the executive
10-23 director may refer the matter to the attorney general for
10-24 collection of the amount of the penalty.
10-25 (n) Judicial review of the order of the commission:
10-26 (1) is instituted by filing a petition as provided by
10-27 Subchapter G, Chapter 2001, Government Code; and
11-1 (2) is under the substantial evidence rule.
11-2 (o) If the court sustains the occurrence of the violation,
11-3 the court may uphold or reduce the amount of the penalty and order
11-4 the person to pay the full or reduced amount of the penalty. If
11-5 the court does not sustain the occurrence of the violation, the
11-6 court shall order that no penalty is owed.
11-7 (p) When the judgment of the court becomes final, the court
11-8 shall proceed under this subsection. If the person paid the amount
11-9 of the penalty and if that amount is reduced or is not upheld by
11-10 the court, the court shall order that the appropriate amount plus
11-11 accrued interest be remitted to the person. The rate of the
11-12 interest is the rate charged on loans to depository institutions by
11-13 the New York Federal Reserve Bank, and the interest shall be paid
11-14 for the period beginning on the date the penalty was paid and
11-15 ending on the date the penalty is remitted. If the person gave a
11-16 supersedeas bond and if the amount of the penalty is not upheld by
11-17 the court, the court shall order the release of the bond. If the
11-18 person gave a supersedeas bond and if the amount of the penalty is
11-19 reduced, the court shall order the release of the bond after the
11-20 person pays the amount.
11-21 (q) A penalty collected under this section shall be remitted
11-22 to the comptroller for deposit in the general revenue fund.
11-23 (r) All proceedings under this section are subject to
11-24 Chapter 2001, Government Code.
11-25 SECTION 18. (a) This Act takes effect September 1, 1997.
11-26 (b) A specific fee amount prescribed in Chapter 1036, Acts
11-27 of the 62nd Legislature, Regular Session, 1971 (Article 8451a,
12-1 Vernon's Texas Civil Statutes), as that statute existed immediately
12-2 before the effective date of this Act, shall remain in effect until
12-3 superseded by a rule adopted by the Texas Cosmetology Commission
12-4 prescribing a different fee amount, and the former law is continued
12-5 in effect for that purpose.
12-6 SECTION 19. The importance of this legislation and the
12-7 crowded condition of the calendars in both houses create an
12-8 emergency and an imperative public necessity that the
12-9 constitutional rule requiring bills to be read on three several
12-10 days in each house be suspended, and this rule is hereby suspended.