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.