By Hirschi H.B. No. 1858 75R2996 MCK-D A BILL TO BE ENTITLED 1-1 AN ACT 1-2 relating to the imposition of administrative penalties under 1-3 certain professional licensing programs. 1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-5 SECTION 1. Chapter 752, Acts of the 69th Legislature, 1-6 Regular Session, 1985 (Article 4512k, Vernon's Texas Civil 1-7 Statutes), is amended by adding Section 13A to read as follows: 1-8 Sec. 13A. ADMINISTRATIVE PENALTY. (a) The department may 1-9 assess an administrative penalty against a person who violates this 1-10 Act or a rule adopted under this Act. 1-11 (b) The penalty may not exceed $1,000 for each violation. 1-12 Each day of a continuing violation constitutes a separate 1-13 violation. 1-14 (c) In determining the amount of an administrative penalty 1-15 assessed under this section, the department shall consider: 1-16 (1) the seriousness of the violation; 1-17 (2) the history of previous violations; 1-18 (3) the amount necessary to deter future violations; 1-19 (4) efforts made to correct the violation; and 1-20 (5) any other matters that justice may require. 1-21 (d) All proceedings for the assessment of an administrative 1-22 penalty under this Act are subject to Chapter 2001, Government 1-23 Code. 1-24 (e) If, after investigation of a possible violation and the 2-1 facts surrounding that possible violation, the department 2-2 determines that a violation has occurred, the department shall give 2-3 written notice of the violation to the person alleged to have 2-4 committed the violation. The notice must include: 2-5 (1) a brief summary of the alleged violation; 2-6 (2) a statement of the amount of the proposed penalty 2-7 based on the factors set forth in Subsection (c) of this section; 2-8 and 2-9 (3) a statement of the person's right to a hearing on 2-10 the occurrence of the violation, the amount of the penalty, or both 2-11 the occurrence of the violation and the amount of the penalty. 2-12 (f) Not later than the 20th day after the date on which the 2-13 notice is received, the person notified may accept the 2-14 determination of the department made under this section, including 2-15 the proposed penalty, or make a written request for a hearing on 2-16 that determination. 2-17 (g) If the person notified of the violation accepts the 2-18 determination of the department, the commissioner of health or that 2-19 commissioner's designee shall issue an order approving the 2-20 determination and ordering that the person pay the proposed 2-21 penalty. 2-22 (h) If the person notified under Subsection (e) of this 2-23 section timely requests a hearing, the department shall: 2-24 (1) set a hearing; 2-25 (2) give written notice of the hearing to the person; 2-26 and 2-27 (3) designate a hearings examiner to conduct the 3-1 hearing. 3-2 (i) The hearings examiner shall make findings of fact and 3-3 conclusions of law and shall promptly issue to the commissioner of 3-4 health or that commissioner's designee a proposal for decision as 3-5 to the occurrence of the violation and a recommendation as to the 3-6 amount of the proposed penalty if a penalty is determined to be 3-7 warranted. 3-8 (j) Based on the findings of fact and conclusions of law and 3-9 the recommendations of the hearings examiner, the commissioner of 3-10 health or that commissioner's designee by order may find that a 3-11 violation has occurred and may assess a penalty or may find that no 3-12 violation has occurred. 3-13 (k) The department shall give notice of the order under 3-14 Subsection (j) of this section to the person notified. The notice 3-15 must include: 3-16 (1) separate statements of the findings of fact and 3-17 conclusions of law; 3-18 (2) the amount of any penalty assessed; and 3-19 (3) a statement of the right of the person to judicial 3-20 review of the order. 3-21 (l) Not later than the 30th day after the date on which the 3-22 decision is final as provided by Chapter 2001, Government Code, the 3-23 person shall: 3-24 (1) pay the penalty; 3-25 (2) pay the penalty and file a petition for judicial 3-26 review contesting the occurrence of the violation, the amount of 3-27 the penalty, or both the occurrence of the violation and the amount 4-1 of the penalty; or 4-2 (3) without paying the penalty, file a petition for 4-3 judicial review contesting the occurrence of the violation, the 4-4 amount of the penalty, or both the occurrence of the violation and 4-5 the amount of the penalty. 4-6 (m) Within the 30-day period, a person who acts under 4-7 Subsection (l)(3) of this section may: 4-8 (1) stay enforcement of the penalty by: 4-9 (A) paying the penalty to the court for 4-10 placement in an escrow account; or 4-11 (B) giving to the court a supersedeas bond that 4-12 is approved by the court for the amount of the penalty and that is 4-13 effective until all judicial review of the order is final; or 4-14 (2) request the court to stay enforcement of the 4-15 penalty by: 4-16 (A) filing with the court a sworn affidavit of 4-17 the person stating that the person is financially unable to pay the 4-18 amount of the penalty and is financially unable to give the 4-19 supersedeas bond; and 4-20 (B) giving a copy of the affidavit to the 4-21 department by certified mail. 4-22 (n) If the department receives a copy of an affidavit under 4-23 Subsection (m)(2) of this section, the department may file with the 4-24 court, within five days after the date the copy is received, a 4-25 contest to the affidavit. The court shall hold a hearing on the 4-26 facts alleged in the affidavit as soon as practicable and shall 4-27 stay the enforcement of the penalty on finding that the alleged 5-1 facts are true. The person who files an affidavit has the burden 5-2 of proving that the person is financially unable to pay the penalty 5-3 and to give a supersedeas bond. 5-4 (o) If the person does not pay the penalty and the 5-5 enforcement of the penalty is not stayed, the department may refer 5-6 the matter to the attorney general for collection of the penalty. 5-7 (p) Judicial review of the order: 5-8 (1) is instituted by filing a petition as provided by 5-9 Subchapter G, Chapter 2001, Government Code; and 5-10 (2) is under the substantial evidence rule. 5-11 (q) If the court sustains the occurrence of the violation, 5-12 the court may uphold or reduce the amount of the penalty and order 5-13 the person to pay the full or reduced amount of the penalty. If 5-14 the court does not sustain the occurrence of the violation, the 5-15 court shall order that no penalty is owed. 5-16 (r) When the judgment of the court becomes final, the court 5-17 shall proceed under this subsection. If the person paid the amount 5-18 of the penalty under Subsection (l)(2) of this section and if that 5-19 amount is reduced or is not upheld by the court, the court shall 5-20 order that the department pay the appropriate amount plus accrued 5-21 interest to the person. The rate of the interest is the rate 5-22 charged on loans to depository institutions by the New York Federal 5-23 Reserve Bank, and the interest shall be paid for the period 5-24 beginning on the date the penalty was paid and ending on the date 5-25 the penalty is remitted. If the person paid the penalty under 5-26 Subsection (m)(1)(A) of this section or gave a supersedeas bond and 5-27 if the amount of the penalty is not upheld by the court, the court 6-1 shall order the release of the escrow account or bond. If the 6-2 person paid the penalty under Subsection (m)(1)(A) and the amount 6-3 of the penalty is reduced, the court shall order that the amount of 6-4 the penalty be paid to the department from the escrow account and 6-5 that the remainder of the account be released. If the person gave 6-6 a supersedeas bond and if the amount of the penalty is reduced, the 6-7 court shall order the release of the bond after the person pays the 6-8 amount. 6-9 (s) An administrative penalty collected under this section 6-10 shall be deposited in the state treasury to the credit of the 6-11 general revenue fund. 6-12 (t) The department may assess reasonable expenses and costs 6-13 against a person in an administrative hearing if, as a result of 6-14 the hearing, an administrative penalty is assessed against the 6-15 person. The person shall pay expenses and costs assessed under 6-16 this subsection not later than the 30th day after the date of the 6-17 order of the commissioner of health or that commissioner's designee 6-18 requiring the payment of expenses and costs is final. The 6-19 department may refer the matter to the attorney general for 6-20 collection of the expenses and costs. 6-21 (u) If the attorney general brings an action against a 6-22 person to enforce an administrative penalty assessed under this Act 6-23 and the person is found liable for an administrative penalty, the 6-24 attorney general may recover, on behalf of the attorney general and 6-25 the department, reasonable expenses and costs. 6-26 (v) For purposes of this section, "reasonable expenses and 6-27 costs" includes expenses incurred by the department and the 7-1 attorney general in the investigation, initiation, or prosecution 7-2 of an action, including reasonable investigative costs, court 7-3 costs, attorney's fees, witness fees, and deposition expenses. 7-4 (w) Costs and expenses collected under this section shall be 7-5 deposited in the state treasury to the credit of a special account 7-6 that may be appropriated only to the department. Section 403.095, 7-7 Government Code, does not apply to the account. 7-8 SECTION 2. Chapter 829, Acts of the 69th Legislature, 7-9 Regular Session, 1985 (Article 4512l, Vernon's Texas Civil 7-10 Statutes), is amended by adding Section 13A to read as follows: 7-11 Sec. 13A. ADMINISTRATIVE PENALTY. (a) The department may 7-12 assess an administrative penalty against a person who violates this 7-13 Act or a rule adopted under this Act. 7-14 (b) The penalty may not exceed $1,000 for each violation. 7-15 Each day of a continuing violation constitutes a separate 7-16 violation. 7-17 (c) In determining the amount of an administrative penalty 7-18 assessed under this section, the department shall consider: 7-19 (1) the seriousness of the violation; 7-20 (2) the history of previous violations; 7-21 (3) the amount necessary to deter future violations; 7-22 (4) efforts made to correct the violation; and 7-23 (5) any other matters that justice may require. 7-24 (d) All proceedings for the assessment of an administrative 7-25 penalty under this Act are subject to Chapter 2001, Government 7-26 Code. 7-27 (e) If, after investigation of a possible violation and the 8-1 facts surrounding that possible violation, the department 8-2 determines that a violation has occurred, the department shall give 8-3 written notice of the violation to the person alleged to have 8-4 committed the violation. The notice must include: 8-5 (1) a brief summary of the alleged violation; 8-6 (2) a statement of the amount of the proposed penalty 8-7 based on the factors set forth in Subsection (c) of this section; 8-8 and 8-9 (3) a statement of the person's right to a hearing on 8-10 the occurrence of the violation, the amount of the penalty, or both 8-11 the occurrence of the violation and the amount of the penalty. 8-12 (f) Not later than the 20th day after the date on which the 8-13 notice is received, the person notified may accept the 8-14 determination of the department made under this section, including 8-15 the proposed penalty, or make a written request for a hearing on 8-16 that determination. 8-17 (g) If the person notified of the violation accepts the 8-18 determination of the department, the commissioner of health or that 8-19 commissioner's designee shall issue an order approving the 8-20 determination and ordering that the person pay the proposed 8-21 penalty. 8-22 (h) If the person notified under Subsection (e) of this 8-23 section timely requests a hearing, the department shall: 8-24 (1) set a hearing; 8-25 (2) give written notice of the hearing to the person; 8-26 and 8-27 (3) designate a hearings examiner to conduct the 9-1 hearing. 9-2 (i) The hearings examiner shall make findings of fact and 9-3 conclusions of law and shall promptly issue to the commissioner of 9-4 health or that commissioner's designee a proposal for decision as 9-5 to the occurrence of the violation and a recommendation as to the 9-6 amount of the proposed penalty if a penalty is determined to be 9-7 warranted. 9-8 (j) Based on the findings of fact and conclusions of law and 9-9 the recommendations of the hearings examiner, the commissioner of 9-10 health or that commissioner's designee by order may find that a 9-11 violation has occurred and may assess a penalty or may find that no 9-12 violation has occurred. 9-13 (k) The department shall give notice of the order under 9-14 Subsection (j) of this section to the person notified. The notice 9-15 must include: 9-16 (1) separate statements of the findings of fact and 9-17 conclusions of law; 9-18 (2) the amount of any penalty assessed; and 9-19 (3) a statement of the right of the person to judicial 9-20 review of the order. 9-21 (l) Not later than the 30th day after the date on which the 9-22 decision is final as provided by Chapter 2001, Government Code, the 9-23 person shall: 9-24 (1) pay the penalty; 9-25 (2) pay the penalty and file a petition for judicial 9-26 review contesting the occurrence of the violation, the amount of 9-27 the penalty, or both the occurrence of the violation and the amount 10-1 of the penalty; or 10-2 (3) without paying the penalty, file a petition for 10-3 judicial review contesting the occurrence of the violation, the 10-4 amount of the penalty, or both the occurrence of the violation and 10-5 the amount of the penalty. 10-6 (m) Within the 30-day period, a person who acts under 10-7 Subsection (l)(3) of this section may: 10-8 (1) stay enforcement of the penalty by: 10-9 (A) paying the penalty to the court for 10-10 placement in an escrow account; or 10-11 (B) giving to the court a supersedeas bond that 10-12 is approved by the court for the amount of the penalty and that is 10-13 effective until all judicial review of the order is final; or 10-14 (2) request the court to stay enforcement of the 10-15 penalty by: 10-16 (A) filing with the court a sworn affidavit of 10-17 the person stating that the person is financially unable to pay the 10-18 amount of the penalty and is financially unable to give the 10-19 supersedeas bond; and 10-20 (B) giving a copy of the affidavit to the 10-21 department by certified mail. 10-22 (n) If the department receives a copy of an affidavit under 10-23 Subsection (m)(2) of this section, the department may file with the 10-24 court, within five days after the date the copy is received, a 10-25 contest to the affidavit. The court shall hold a hearing on the 10-26 facts alleged in the affidavit as soon as practicable and shall 10-27 stay the enforcement of the penalty on finding that the alleged 11-1 facts are true. The person who files an affidavit has the burden 11-2 of proving that the person is financially unable to pay the penalty 11-3 and to give a supersedeas bond. 11-4 (o) If the person does not pay the penalty and the 11-5 enforcement of the penalty is not stayed, the department may refer 11-6 the matter to the attorney general for collection of the penalty. 11-7 (p) Judicial review of the order: 11-8 (1) is instituted by filing a petition as provided by 11-9 Subchapter G, Chapter 2001, Government Code; and 11-10 (2) is under the substantial evidence rule. 11-11 (q) If the court sustains the occurrence of the violation, 11-12 the court may uphold or reduce the amount of the penalty and order 11-13 the person to pay the full or reduced amount of the penalty. If 11-14 the court does not sustain the occurrence of the violation, the 11-15 court shall order that no penalty is owed. 11-16 (r) When the judgment of the court becomes final, the court 11-17 shall proceed under this subsection. If the person paid the amount 11-18 of the penalty under Subsection (l)(2) of this section and if that 11-19 amount is reduced or is not upheld by the court, the court shall 11-20 order that the department pay the appropriate amount plus accrued 11-21 interest to the person. The rate of the interest is the rate 11-22 charged on loans to depository institutions by the New York Federal 11-23 Reserve Bank, and the interest shall be paid for the period 11-24 beginning on the date the penalty was paid and ending on the date 11-25 the penalty is remitted. If the person paid the penalty under 11-26 Subsection (m)(1)(A) of this section or gave a supersedeas bond and 11-27 if the amount of the penalty is not upheld by the court, the court 12-1 shall order the release of the escrow account or bond. If the 12-2 person paid the penalty under Subsection (m)(1)(A) and the amount 12-3 of the penalty is reduced, the court shall order that the amount of 12-4 the penalty be paid to the department from the escrow account and 12-5 that the remainder of the account be released. If the person gave 12-6 a supersedeas bond and if the amount of the penalty is reduced, the 12-7 court shall order the release of the bond after the person pays the 12-8 amount. 12-9 (s) An administrative penalty collected under this section 12-10 shall be deposited in the state treasury to the credit of the 12-11 general revenue fund. 12-12 (t) The department may assess reasonable expenses and costs 12-13 against a person in an administrative hearing if, as a result of 12-14 the hearing, an administrative penalty is assessed against the 12-15 person. The person shall pay expenses and costs assessed under 12-16 this subsection not later than the 30th day after the date of the 12-17 order of the commissioner of health or that commissioner's designee 12-18 requiring the payment of expenses and costs is final. The 12-19 department may refer the matter to the attorney general for 12-20 collection of the expenses and costs. 12-21 (u) If the attorney general brings an action against a 12-22 person to enforce an administrative penalty assessed under this 12-23 Act and the person is found liable for an administrative penalty, 12-24 the attorney general may recover, on behalf of the attorney general 12-25 and the department, reasonable expenses and costs. 12-26 (v) For purposes of this section, "reasonable expenses and 12-27 costs" includes expenses incurred by the department and the 13-1 attorney general in the investigation, initiation, or prosecution 13-2 of an action, including reasonable investigative costs, court 13-3 costs, attorney's fees, witness fees, and deposition expenses. 13-4 (w) Costs and expenses collected under this section shall be 13-5 deposited in the state treasury to the credit of a special account 13-6 that may be appropriated only to the department. Section 403.095, 13-7 Government Code, does not apply to the account. 13-8 SECTION 3. The Medical Radiologic Technologist Certification 13-9 Act (Article 4512m, Vernon's Texas Civil Statutes) is amended by 13-10 adding Section 2.15 to read as follows: 13-11 Sec. 2.15. ADMINISTRATIVE PENALTY. (a) The department may 13-12 assess an administrative penalty against a person who violates this 13-13 Act or a rule adopted under this Act. 13-14 (b) The penalty may not exceed $1,000 for each violation. 13-15 Each day of a continuing violation constitutes a separate 13-16 violation. 13-17 (c) In determining the amount of an administrative penalty 13-18 assessed under this section, the department shall consider: 13-19 (1) the seriousness of the violation; 13-20 (2) the history of previous violations; 13-21 (3) the amount necessary to deter future violations; 13-22 (4) efforts made to correct the violation; and 13-23 (5) any other matters that justice may require. 13-24 (d) All proceedings for the assessment of an administrative 13-25 penalty under this Act are subject to Chapter 2001, Government 13-26 Code. 13-27 (e) If, after investigation of a possible violation and the 14-1 facts surrounding that possible violation, the department 14-2 determines that a violation has occurred, the department shall give 14-3 written notice of the violation to the person alleged to have 14-4 committed the violation. The notice must include: 14-5 (1) a brief summary of the alleged violation; 14-6 (2) a statement of the amount of the proposed penalty 14-7 based on the factors set forth in Subsection (c) of this section; 14-8 and 14-9 (3) a statement of the person's right to a hearing on 14-10 the occurrence of the violation, the amount of the penalty, or both 14-11 the occurrence of the violation and the amount of the penalty. 14-12 (f) Not later than the 20th day after the date on which the 14-13 notice is received, the person notified may accept the 14-14 determination of the department made under this section, including 14-15 the proposed penalty, or make a written request for a hearing on 14-16 that determination. 14-17 (g) If the person notified of the violation accepts the 14-18 determination of the department, the commissioner of health or that 14-19 commissioner's designee shall issue an order approving the 14-20 determination and ordering that the person pay the proposed 14-21 penalty. 14-22 (h) If the person notified under Subsection (e) of this 14-23 section timely requests a hearing, the department shall: 14-24 (1) set a hearing; 14-25 (2) give written notice of the hearing to the person; 14-26 and 14-27 (3) designate a hearings examiner to conduct the 15-1 hearing. 15-2 (i) The hearings examiner shall make findings of fact and 15-3 conclusions of law and shall promptly issue to the commissioner of 15-4 health or that commissioner's designee a proposal for decision as 15-5 to the occurrence of the violation and a recommendation as to the 15-6 amount of the proposed penalty if a penalty is determined to be 15-7 warranted. 15-8 (j) Based on the findings of fact and conclusions of law and 15-9 the recommendations of the hearings examiner, the commissioner of 15-10 health or that commissioner's designee by order may find that a 15-11 violation has occurred and may assess a penalty or may find that no 15-12 violation has occurred. 15-13 (k) The department shall give notice of the order under 15-14 Subsection (j) of this section to the person notified. The notice 15-15 must include: 15-16 (1) separate statements of the findings of fact and 15-17 conclusions of law; 15-18 (2) the amount of any penalty assessed; and 15-19 (3) a statement of the right of the person to judicial 15-20 review of the order. 15-21 (l) Not later than the 30th day after the date on which the 15-22 decision is final as provided by Chapter 2001, Government Code, the 15-23 person shall: 15-24 (1) pay the penalty; 15-25 (2) pay the penalty and file a petition for judicial 15-26 review contesting the occurrence of the violation, the amount of 15-27 the penalty, or both the occurrence of the violation and the amount 16-1 of the penalty; or 16-2 (3) without paying the penalty, file a petition for 16-3 judicial review contesting the occurrence of the violation, the 16-4 amount of the penalty, or both the occurrence of the violation and 16-5 the amount of the penalty. 16-6 (m) Within the 30-day period, a person who acts under 16-7 Subsection (l)(3) of this section may: 16-8 (1) stay enforcement of the penalty by: 16-9 (A) paying the penalty to the court for 16-10 placement in an escrow account; or 16-11 (B) giving to the court a supersedeas bond that 16-12 is approved by the court for the amount of the penalty and that is 16-13 effective until all judicial review of the order is final; or 16-14 (2) request the court to stay enforcement of the 16-15 penalty by: 16-16 (A) filing with the court a sworn affidavit of 16-17 the person stating that the person is financially unable to pay the 16-18 amount of the penalty and is financially unable to give the 16-19 supersedeas bond; and 16-20 (B) giving a copy of the affidavit to the 16-21 department by certified mail. 16-22 (n) If the department receives a copy of an affidavit under 16-23 Subsection (m)(2) of this section, the department may file with the 16-24 court, within five days after the date the copy is received, a 16-25 contest to the affidavit. The court shall hold a hearing on the 16-26 facts alleged in the affidavit as soon as practicable and shall 16-27 stay the enforcement of the penalty on finding that the alleged 17-1 facts are true. The person who files an affidavit has the burden 17-2 of proving that the person is financially unable to pay the penalty 17-3 and to give a supersedeas bond. 17-4 (o) If the person does not pay the penalty and the 17-5 enforcement of the penalty is not stayed, the department may refer 17-6 the matter to the attorney general for collection of the penalty. 17-7 (p) Judicial review of the order: 17-8 (1) is instituted by filing a petition as provided by 17-9 Subchapter G, Chapter 2001, Government Code; and 17-10 (2) is under the substantial evidence rule. 17-11 (q) If the court sustains the occurrence of the violation, 17-12 the court may uphold or reduce the amount of the penalty and order 17-13 the person to pay the full or reduced amount of the penalty. If 17-14 the court does not sustain the occurrence of the violation, the 17-15 court shall order that no penalty is owed. 17-16 (r) When the judgment of the court becomes final, the court 17-17 shall proceed under this subsection. If the person paid the amount 17-18 of the penalty under Subsection (l)(2) of this section and if that 17-19 amount is reduced or is not upheld by the court, the court shall 17-20 order that the department pay the appropriate amount plus accrued 17-21 interest to the person. The rate of the interest is the rate 17-22 charged on loans to depository institutions by the New York Federal 17-23 Reserve Bank, and the interest shall be paid for the period 17-24 beginning on the date the penalty was paid and ending on the date 17-25 the penalty is remitted. If the person paid the penalty under 17-26 Subsection (m)(1)(A) of this section or gave a supersedeas bond and 17-27 if the amount of the penalty is not upheld by the court, the court 18-1 shall order the release of the escrow account or bond. If the 18-2 person paid the penalty under Subsection (m)(1)(A) and the amount 18-3 of the penalty is reduced, the court shall order that the amount of 18-4 the penalty be paid to the department from the escrow account and 18-5 that the remainder of the account be released. If the person gave 18-6 a supersedeas bond and if the amount of the penalty is reduced, the 18-7 court shall order the release of the bond after the person pays the 18-8 amount. 18-9 (s) An administrative penalty collected under this section 18-10 shall be deposited in the state treasury to the credit of the 18-11 general revenue fund. 18-12 (t) The department may assess reasonable expenses and costs 18-13 against a person in an administrative hearing if, as a result of 18-14 the hearing, an administrative penalty is assessed against the 18-15 person. The person shall pay expenses and costs assessed under 18-16 this subsection not later than the 30th day after the date of the 18-17 order of the commissioner of health or that commissioner's designee 18-18 requiring the payment of expenses and costs is final. The 18-19 department may refer the matter to the attorney general for 18-20 collection of the expenses and costs. 18-21 (u) If the attorney general brings an action against a 18-22 person to enforce an administrative penalty assessed under this 18-23 Act and the person is found liable for an administrative penalty, 18-24 the attorney general may recover, on behalf of the attorney general 18-25 and the department, reasonable expenses and costs. 18-26 (v) For purposes of this section, "reasonable expenses and 18-27 costs" includes expenses incurred by the department and the 19-1 attorney general in the investigation, initiation, or prosecution 19-2 of an action, including reasonable investigative costs, court 19-3 costs, attorney's fees, witness fees, and deposition expenses. 19-4 (w) Costs and expenses collected under this section shall be 19-5 deposited in the state treasury to the credit of a special account 19-6 that may be appropriated only to the department. Section 403.095, 19-7 Government Code, does not apply to the account. 19-8 SECTION 4. The Opticians' Registry Act (Article 4551-1, 19-9 Vernon's Texas Civil Statutes) is amended by adding Section 10A to 19-10 read as follows: 19-11 Sec. 10A. ADMINISTRATIVE PENALTY. (a) The department may 19-12 assess an administrative penalty against a person who violates this 19-13 Act or a rule adopted under this Act. 19-14 (b) The penalty may not exceed $1,000 for each violation. 19-15 Each day of a continuing violation constitutes a separate 19-16 violation. 19-17 (c) In determining the amount of an administrative penalty 19-18 assessed under this section, the department shall consider: 19-19 (1) the seriousness of the violation; 19-20 (2) the history of previous violations; 19-21 (3) the amount necessary to deter future violations; 19-22 (4) efforts made to correct the violation; and 19-23 (5) any other matters that justice may require. 19-24 (d) All proceedings for the assessment of an administrative 19-25 penalty under this Act are subject to Chapter 2001, Government 19-26 Code. 19-27 (e) If, after investigation of a possible violation and the 20-1 facts surrounding that possible violation, the department 20-2 determines that a violation has occurred, the department shall give 20-3 written notice of the violation to the person alleged to have 20-4 committed the violation. The notice must include: 20-5 (1) a brief summary of the alleged violation; 20-6 (2) a statement of the amount of the proposed penalty 20-7 based on the factors set forth in Subsection (c) of this section; 20-8 and 20-9 (3) a statement of the person's right to a hearing on 20-10 the occurrence of the violation, the amount of the penalty, or both 20-11 the occurrence of the violation and the amount of the penalty. 20-12 (f) Not later than the 20th day after the date on which the 20-13 notice is received, the person notified may accept the 20-14 determination of the department made under this section, including 20-15 the proposed penalty, or make a written request for a hearing on 20-16 that determination. 20-17 (g) If the person notified of the violation accepts the 20-18 determination of the department, the commissioner of health or that 20-19 commissioner's designee shall issue an order approving the 20-20 determination and ordering that the person pay the proposed 20-21 penalty. 20-22 (h) If the person notified under Subsection (e) of this 20-23 section timely requests a hearing, the department shall: 20-24 (1) set a hearing; 20-25 (2) give written notice of the hearing to the person; 20-26 and 20-27 (3) designate a hearings examiner to conduct the 21-1 hearing. 21-2 (i) The hearings examiner shall make findings of fact and 21-3 conclusions of law and shall promptly issue to the commissioner of 21-4 health or that commissioner's designee a proposal for decision as 21-5 to the occurrence of the violation and a recommendation as to the 21-6 amount of the proposed penalty if a penalty is determined to be 21-7 warranted. 21-8 (j) Based on the findings of fact and conclusions of law and 21-9 the recommendations of the hearings examiner, the commissioner of 21-10 health or that commissioner's designee by order may find that a 21-11 violation has occurred and may assess a penalty or may find that no 21-12 violation has occurred. 21-13 (k) The department shall give notice of the order under 21-14 Subsection (j) of this section to the person notified. The notice 21-15 must include: 21-16 (1) separate statements of the findings of fact and 21-17 conclusions of law; 21-18 (2) the amount of any penalty assessed; and 21-19 (3) a statement of the right of the person to judicial 21-20 review of the order. 21-21 (l) Not later than the 30th day after the date on which the 21-22 decision is final as provided by Chapter 2001, Government Code, the 21-23 person shall: 21-24 (1) pay the penalty; 21-25 (2) pay the penalty and file a petition for judicial 21-26 review contesting the occurrence of the violation, the amount of 21-27 the penalty, or both the occurrence of the violation and the amount 22-1 of the penalty; or 22-2 (3) without paying the penalty, file a petition for 22-3 judicial review contesting the occurrence of the violation, the 22-4 amount of the penalty, or both the occurrence of the violation and 22-5 the amount of the penalty. 22-6 (m) Within the 30-day period, a person who acts under 22-7 Subsection (l)(3) of this section may: 22-8 (1) stay enforcement of the penalty by: 22-9 (A) paying the penalty to the court for 22-10 placement in an escrow account; or 22-11 (B) giving to the court a supersedeas bond that 22-12 is approved by the court for the amount of the penalty and that is 22-13 effective until all judicial review of the order is final; or 22-14 (2) request the court to stay enforcement of the 22-15 penalty by: 22-16 (A) filing with the court a sworn affidavit of 22-17 the person stating that the person is financially unable to pay the 22-18 amount of the penalty and is financially unable to give the 22-19 supersedeas bond; and 22-20 (B) giving a copy of the affidavit to the 22-21 department by certified mail. 22-22 (n) If the department receives a copy of an affidavit under 22-23 Subsection (m)(2) of this section, the department may file with the 22-24 court, within five days after the date the copy is received, a 22-25 contest to the affidavit. The court shall hold a hearing on the 22-26 facts alleged in the affidavit as soon as practicable and shall 22-27 stay the enforcement of the penalty on finding that the alleged 23-1 facts are true. The person who files an affidavit has the burden 23-2 of proving that the person is financially unable to pay the penalty 23-3 and to give a supersedeas bond. 23-4 (o) If the person does not pay the penalty and the 23-5 enforcement of the penalty is not stayed, the department may refer 23-6 the matter to the attorney general for collection of the penalty. 23-7 (p) Judicial review of the order: 23-8 (1) is instituted by filing a petition as provided by 23-9 Subchapter G, Chapter 2001, Government Code; and 23-10 (2) is under the substantial evidence rule. 23-11 (q) If the court sustains the occurrence of the violation, 23-12 the court may uphold or reduce the amount of the penalty and order 23-13 the person to pay the full or reduced amount of the penalty. If 23-14 the court does not sustain the occurrence of the violation, the 23-15 court shall order that no penalty is owed. 23-16 (r) When the judgment of the court becomes final, the court 23-17 shall proceed under this subsection. If the person paid the amount 23-18 of the penalty under Subsection (l)(2) of this section and if that 23-19 amount is reduced or is not upheld by the court, the court shall 23-20 order that the department pay the appropriate amount plus accrued 23-21 interest to the person. The rate of the interest is the rate 23-22 charged on loans to depository institutions by the New York Federal 23-23 Reserve Bank, and the interest shall be paid for the period 23-24 beginning on the date the penalty was paid and ending on the date 23-25 the penalty is remitted. If the person paid the penalty under 23-26 Subsection (m)(1)(A) of this section or gave a supersedeas bond and 23-27 if the amount of the penalty is not upheld by the court, the court 24-1 shall order the release of the escrow account or bond. If the 24-2 person paid the penalty under Subsection (m)(1)(A) and the amount 24-3 of the penalty is reduced, the court shall order that the amount of 24-4 the penalty be paid to the department from the escrow account and 24-5 that the remainder of the account be released. If the person gave 24-6 a supersedeas bond and if the amount of the penalty is reduced, the 24-7 court shall order the release of the bond after the person pays the 24-8 amount. 24-9 (s) An administrative penalty collected under this section 24-10 shall be deposited in the state treasury to the credit of the 24-11 general revenue fund. 24-12 (t) The department may assess reasonable expenses and costs 24-13 against a person in an administrative hearing if, as a result of 24-14 the hearing, an administrative penalty is assessed against the 24-15 person. The person shall pay expenses and costs assessed under 24-16 this subsection not later than the 30th day after the date of the 24-17 order of the commissioner of health or that commissioner's designee 24-18 requiring the payment of expenses and costs is final. The 24-19 department may refer the matter to the attorney general for 24-20 collection of the expenses and costs. 24-21 (u) If the attorney general brings an action against a 24-22 person to enforce an administrative penalty assessed under this Act 24-23 and the person is found liable for an administrative penalty, the 24-24 attorney general may recover, on behalf of the attorney general and 24-25 the department, reasonable expenses and costs. 24-26 (v) For purposes of this section, "reasonable expenses and 24-27 costs" includes expenses incurred by the department and the 25-1 attorney general in the investigation, initiation, or prosecution 25-2 of an action, including reasonable investigative costs, court 25-3 costs, attorney's fees, witness fees, and deposition expenses. 25-4 (w) Costs and expenses collected under this section shall 25-5 be deposited in the state treasury to the credit of a special 25-6 account that may be appropriated only to the department. Section 25-7 403.095, Government Code, does not apply to the account. 25-8 SECTION 5. This Act takes effect September 1, 1997. The 25-9 change in law made by this Act applies only to a violation that 25-10 occurs on or after the effective date of this Act. A violation 25-11 that occurs before the effective date of this Act is covered by the 25-12 law in effect when the violation was committed. 25-13 SECTION 6. The importance of this legislation and the 25-14 crowded condition of the calendars in both houses create an 25-15 emergency and an imperative public necessity that the 25-16 constitutional rule requiring bills to be read on three several 25-17 days in each house be suspended, and this rule is hereby suspended.