By: Moncrief S.B. No. 702
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the imposition of administrative penalties under
1-2 certain professional licensing programs.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Chapter 752, Acts of the 69th Legislature,
1-5 Regular Session, 1985 (Article 4512k, Vernon's Texas Civil
1-6 Statutes), is amended by adding Section 13A to read as follows:
1-7 Sec. 13A. ADMINISTRATIVE PENALTY. (a) The department may
1-8 assess an administrative penalty against a person who violates this
1-9 Act or a rule adopted under this Act.
1-10 (b) The penalty may not exceed $1,000 for each violation.
1-11 Each day of a continuing violation constitutes a separate
1-12 violation.
1-13 (c) In determining the amount of an administrative penalty
1-14 assessed under this section, the department shall consider:
1-15 (1) the seriousness of the violation;
1-16 (2) the history of previous violations;
1-17 (3) the amount necessary to deter future violations;
1-18 (4) efforts made to correct the violation; and
1-19 (5) any other matters that justice may require.
1-20 (d) All proceedings for the assessment of an administrative
1-21 penalty under this Act are subject to Chapter 2001, Government
1-22 Code.
1-23 (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 public health
2-19 or that 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;
3-1 and
3-2 (3) designate a hearings examiner to conduct the
3-3 hearing.
3-4 (i) The hearings examiner shall make findings of fact and
3-5 conclusions of law and shall promptly issue to the commissioner of
3-6 public health or that commissioner's designee a proposal for
3-7 decision as to the occurrence of the violation and a recommendation
3-8 as to the amount of the proposed penalty if a penalty is determined
3-9 to be warranted.
3-10 (j) Based on the findings of fact and conclusions of law and
3-11 the recommendations of the hearings examiner, the commissioner of
3-12 public health or that commissioner's designee by order may find
3-13 that a violation has occurred and may assess a penalty or may find
3-14 that no violation has occurred.
3-15 (k) The department shall give notice of the order under
3-16 Subsection (j) of this section to the person notified. The notice
3-17 must include:
3-18 (1) separate statements of the findings of fact and
3-19 conclusions of law;
3-20 (2) the amount of any penalty assessed; and
3-21 (3) a statement of the right of the person to judicial
3-22 review of the order.
3-23 (l) Not later than the 30th day after the date on which the
3-24 decision is final as provided by Chapter 2001, Government Code, the
3-25 person shall:
4-1 (1) pay the penalty;
4-2 (2) pay the penalty and file a petition for judicial
4-3 review contesting the occurrence of the violation, the amount of
4-4 the penalty, or both the occurrence of the violation and the amount
4-5 of the penalty; or
4-6 (3) without paying the penalty, file a petition for
4-7 judicial review contesting the occurrence of the violation, the
4-8 amount of the penalty, or both the occurrence of the violation and
4-9 the amount of the penalty.
4-10 (m) Within the 30-day period, a person who acts under
4-11 Subsection (l)(3) of this section may:
4-12 (1) stay enforcement of the penalty by:
4-13 (A) paying the penalty to the court for
4-14 placement in an escrow account; or
4-15 (B) giving to the court a supersedeas bond that
4-16 is approved by the court for the amount of the penalty and that is
4-17 effective until all judicial review of the order is final; or
4-18 (2) request the court to stay enforcement of the
4-19 penalty by:
4-20 (A) filing with the court a sworn affidavit of
4-21 the person stating that the person is financially unable to pay the
4-22 amount of the penalty and is financially unable to give the
4-23 supersedeas bond; and
4-24 (B) giving a copy of the affidavit to the
4-25 department by certified mail.
5-1 (n) If the department receives a copy of an affidavit under
5-2 Subsection (m)(2) of this section, the department may file with the
5-3 court, within five days after the date the copy is received, a
5-4 contest to the affidavit. The court shall hold a hearing on the
5-5 facts alleged in the affidavit as soon as practicable and shall
5-6 stay the enforcement of the penalty on finding that the alleged
5-7 facts are true. The person who files an affidavit has the burden
5-8 of proving that the person is financially unable to pay the penalty
5-9 and to give a supersedeas bond.
5-10 (o) If the person does not pay the penalty and the
5-11 enforcement of the penalty is not stayed, the department may refer
5-12 the matter to the attorney general for collection of the penalty.
5-13 (p) Judicial review of the order:
5-14 (1) is instituted by filing a petition as provided by
5-15 Subchapter G, Chapter 2001, Government Code; and
5-16 (2) is under the substantial evidence rule.
5-17 (q) If the court sustains the occurrence of the violation,
5-18 the court may uphold or reduce the amount of the penalty and order
5-19 the person to pay the full or reduced amount of the penalty. If
5-20 the court does not sustain the occurrence of the violation, the
5-21 court shall order that no penalty is owed.
5-22 (r) When the judgment of the court becomes final, the court
5-23 shall proceed under this subsection. If the person paid the amount
5-24 of the penalty under Subsection (l)(2) of this section and if that
5-25 amount is reduced or is not upheld by the court, the court shall
6-1 order that the department pay the appropriate amount plus accrued
6-2 interest to the person. The rate of the interest is the rate
6-3 charged on loans to depository institutions by the New York Federal
6-4 Reserve Bank, and the interest shall be paid for the period
6-5 beginning on the date the penalty was paid and ending on the date
6-6 the penalty is remitted. If the person paid the penalty under
6-7 Subsection (m)(1)(A) of this section or gave a supersedeas bond and
6-8 if the amount of the penalty is not upheld by the court, the court
6-9 shall order the release of the escrow account or bond. If the
6-10 person paid the penalty under Subsection (m)(1)(A) and the amount
6-11 of the penalty is reduced, the court shall order that the amount of
6-12 the penalty be paid to the department from the escrow account and
6-13 that the remainder of the account be released. If the person gave
6-14 a supersedeas bond and if the amount of the penalty is reduced, the
6-15 court shall order the release of the bond after the person pays the
6-16 amount.
6-17 (s) An administrative penalty collected under this section
6-18 shall be deposited in the state treasury to the credit of the
6-19 general revenue fund.
6-20 (t) The department may assess reasonable expenses and costs
6-21 against a person in an administrative hearing if, as a result of
6-22 the hearing, an administrative penalty is assessed against the
6-23 person. The person shall pay expenses and costs assessed under
6-24 this subsection not later than the 30th day after the date of the
6-25 order of the commissioner of public health or that commissioner's
7-1 designee requiring the payment of expenses and costs is final. The
7-2 department may refer the matter to the attorney general for
7-3 collection of the expenses and costs.
7-4 (u) If the attorney general brings an action against a
7-5 person to enforce an administrative penalty assessed under this Act
7-6 and the person is found liable for an administrative penalty, the
7-7 attorney general may recover, on behalf of the attorney general and
7-8 the department, reasonable expenses and costs.
7-9 (v) For purposes of this section, "reasonable expenses and
7-10 costs" includes expenses incurred by the department and the
7-11 attorney general in the investigation, initiation, or prosecution
7-12 of an action, including reasonable investigative costs, court
7-13 costs, attorney's fees, witness fees, and deposition expenses.
7-14 (w) Costs and expenses collected under this section shall be
7-15 deposited in the state treasury to the credit of a special account
7-16 that may be appropriated only to the department. Section 403.095,
7-17 Government Code, does not apply to the account.
7-18 SECTION 2. Chapter 829, Acts of the 69th Legislature,
7-19 Regular Session, 1985 (Article 4512l, Vernon's Texas Civil
7-20 Statutes), is amended by adding Section 13A to read as follows:
7-21 Sec. 13A. ADMINISTRATIVE PENALTY. (a) The department may
7-22 assess an administrative penalty against a person who violates this
7-23 Act or a rule adopted under this Act.
7-24 (b) The penalty may not exceed $1,000 for each violation.
7-25 Each day of a continuing violation constitutes a separate
8-1 violation.
8-2 (c) In determining the amount of an administrative penalty
8-3 assessed under this section, the department shall consider:
8-4 (1) the seriousness of the violation;
8-5 (2) the history of previous violations;
8-6 (3) the amount necessary to deter future violations;
8-7 (4) efforts made to correct the violation; and
8-8 (5) any other matters that justice may require.
8-9 (d) All proceedings for the assessment of an administrative
8-10 penalty under this Act are subject to Chapter 2001, Government
8-11 Code.
8-12 (e) If, after investigation of a possible violation and the
8-13 facts surrounding that possible violation, the department
8-14 determines that a violation has occurred, the department shall give
8-15 written notice of the violation to the person alleged to have
8-16 committed the violation. The notice must include:
8-17 (1) a brief summary of the alleged violation;
8-18 (2) a statement of the amount of the proposed penalty
8-19 based on the factors set forth in Subsection (c) of this section;
8-20 and
8-21 (3) a statement of the person's right to a hearing on
8-22 the occurrence of the violation, the amount of the penalty, or both
8-23 the occurrence of the violation and the amount of the penalty.
8-24 (f) Not later than the 20th day after the date on which the
8-25 notice is received, the person notified may accept the
9-1 determination of the department made under this section, including
9-2 the proposed penalty, or make a written request for a hearing on
9-3 that determination.
9-4 (g) If the person notified of the violation accepts the
9-5 determination of the department, the commissioner of public health
9-6 or that commissioner's designee shall issue an order approving the
9-7 determination and ordering that the person pay the proposed
9-8 penalty.
9-9 (h) If the person notified under Subsection (e) of this
9-10 section timely requests a hearing, the department shall:
9-11 (1) set a hearing;
9-12 (2) give written notice of the hearing to the person;
9-13 and
9-14 (3) designate a hearings examiner to conduct the
9-15 hearing.
9-16 (i) The hearings examiner shall make findings of fact and
9-17 conclusions of law and shall promptly issue to the commissioner of
9-18 public health or that commissioner's designee a proposal for
9-19 decision as to the occurrence of the violation and a recommendation
9-20 as to the amount of the proposed penalty if a penalty is determined
9-21 to be warranted.
9-22 (j) Based on the findings of fact and conclusions of law and
9-23 the recommendations of the hearings examiner, the commissioner of
9-24 public health or that commissioner's designee by order may find
9-25 that a violation has occurred and may assess a penalty or may find
10-1 that no violation has occurred.
10-2 (k) The department shall give notice of the order under
10-3 Subsection (j) of this section to the person notified. The notice
10-4 must include:
10-5 (1) separate statements of the findings of fact and
10-6 conclusions of law;
10-7 (2) the amount of any penalty assessed; and
10-8 (3) a statement of the right of the person to judicial
10-9 review of the order.
10-10 (l) Not later than the 30th day after the date on which the
10-11 decision is final as provided by Chapter 2001, Government Code, the
10-12 person shall:
10-13 (1) pay the penalty;
10-14 (2) pay the penalty and file a petition for judicial
10-15 review contesting the occurrence of the violation, the amount of
10-16 the penalty, or both the occurrence of the violation and the amount
10-17 of the penalty; or
10-18 (3) without paying the penalty, file a petition for
10-19 judicial review contesting the occurrence of the violation, the
10-20 amount of the penalty, or both the occurrence of the violation and
10-21 the amount of the penalty.
10-22 (m) Within the 30-day period, a person who acts under
10-23 Subsection (l)(3) of this section may:
10-24 (1) stay enforcement of the penalty by:
10-25 (A) paying the penalty to the court for
11-1 placement in an escrow account; or
11-2 (B) giving to the court a supersedeas bond that
11-3 is approved by the court for the amount of the penalty and that is
11-4 effective until all judicial review of the order is final; or
11-5 (2) request the court to stay enforcement of the
11-6 penalty by:
11-7 (A) filing with the court a sworn affidavit of
11-8 the person stating that the person is financially unable to pay the
11-9 amount of the penalty and is financially unable to give the
11-10 supersedeas bond; and
11-11 (B) giving a copy of the affidavit to the
11-12 department by certified mail.
11-13 (n) If the department receives a copy of an affidavit under
11-14 Subsection (m)(2) of this section, the department may file with the
11-15 court, within five days after the date the copy is received, a
11-16 contest to the affidavit. The court shall hold a hearing on the
11-17 facts alleged in the affidavit as soon as practicable and shall
11-18 stay the enforcement of the penalty on finding that the alleged
11-19 facts are true. The person who files an affidavit has the burden
11-20 of proving that the person is financially unable to pay the penalty
11-21 and to give a supersedeas bond.
11-22 (o) If the person does not pay the penalty and the
11-23 enforcement of the penalty is not stayed, the department may refer
11-24 the matter to the attorney general for collection of the penalty.
11-25 (p) Judicial review of the order:
12-1 (1) is instituted by filing a petition as provided by
12-2 Subchapter G, Chapter 2001, Government Code; and
12-3 (2) is under the substantial evidence rule.
12-4 (q) If the court sustains the occurrence of the violation,
12-5 the court may uphold or reduce the amount of the penalty and order
12-6 the person to pay the full or reduced amount of the penalty. If
12-7 the court does not sustain the occurrence of the violation, the
12-8 court shall order that no penalty is owed.
12-9 (r) When the judgment of the court becomes final, the court
12-10 shall proceed under this subsection. If the person paid the amount
12-11 of the penalty under Subsection (l)(2) of this section and if that
12-12 amount is reduced or is not upheld by the court, the court shall
12-13 order that the department pay the appropriate amount plus accrued
12-14 interest to the person. The rate of the interest is the rate
12-15 charged on loans to depository institutions by the New York Federal
12-16 Reserve Bank, and the interest shall be paid for the period
12-17 beginning on the date the penalty was paid and ending on the date
12-18 the penalty is remitted. If the person paid the penalty under
12-19 Subsection (m)(1)(A) of this section or gave a supersedeas bond and
12-20 if the amount of the penalty is not upheld by the court, the court
12-21 shall order the release of the escrow account or bond. If the
12-22 person paid the penalty under Subsection (m)(1)(A) and the amount
12-23 of the penalty is reduced, the court shall order that the amount of
12-24 the penalty be paid to the department from the escrow account and
12-25 that the remainder of the account be released. If the person gave
13-1 a supersedeas bond and if the amount of the penalty is reduced, the
13-2 court shall order the release of the bond after the person pays the
13-3 amount.
13-4 (s) An administrative penalty collected under this section
13-5 shall be deposited in the state treasury to the credit of the
13-6 general revenue fund.
13-7 (t) The department may assess reasonable expenses and costs
13-8 against a person in an administrative hearing if, as a result of
13-9 the hearing, an administrative penalty is assessed against the
13-10 person. The person shall pay expenses and costs assessed under
13-11 this subsection not later than the 30th day after the date of the
13-12 order of the commissioner of public health or that commissioner's
13-13 designee requiring the payment of expenses and costs is final. The
13-14 department may refer the matter to the attorney general for
13-15 collection of the expenses and costs.
13-16 (u) If the attorney general brings an action against a
13-17 person to enforce an administrative penalty assessed under this Act
13-18 and the person is found liable for an administrative penalty, the
13-19 attorney general may recover, on behalf of the attorney general and
13-20 the department, reasonable expenses and costs.
13-21 (v) For purposes of this section, "reasonable expenses and
13-22 costs" includes expenses incurred by the department and the
13-23 attorney general in the investigation, initiation, or prosecution
13-24 of an action, including reasonable investigative costs, court
13-25 costs, attorney's fees, witness fees, and deposition expenses.
14-1 (w) Costs and expenses collected under this section shall be
14-2 deposited in the state treasury to the credit of a special account
14-3 that may be appropriated only to the department. Section 403.095,
14-4 Government Code, does not apply to the account.
14-5 SECTION 3. The Medical Radiologic Technologist Certification
14-6 Act (Article 4512m, Vernon's Texas Civil Statutes) is amended by
14-7 adding Section 2.15 to read as follows:
14-8 Sec. 2.15. ADMINISTRATIVE PENALTY. (a) The department may
14-9 assess an administrative penalty against a person who violates this
14-10 Act or a rule adopted under this Act.
14-11 (b) The penalty may not exceed $1,000 for each violation.
14-12 Each day of a continuing violation constitutes a separate
14-13 violation.
14-14 (c) In determining the amount of an administrative penalty
14-15 assessed under this section, the department shall consider:
14-16 (1) the seriousness of the violation;
14-17 (2) the history of previous violations;
14-18 (3) the amount necessary to deter future violations;
14-19 (4) efforts made to correct the violation; and
14-20 (5) any other matters that justice may require.
14-21 (d) All proceedings for the assessment of an administrative
14-22 penalty under this Act are subject to Chapter 2001, Government
14-23 Code.
14-24 (e) If, after investigation of a possible violation and the
14-25 facts surrounding that possible violation, the department
15-1 determines that a violation has occurred, the department shall give
15-2 written notice of the violation to the person alleged to have
15-3 committed the violation. The notice must include:
15-4 (1) a brief summary of the alleged violation;
15-5 (2) a statement of the amount of the proposed penalty
15-6 based on the factors set forth in Subsection (c) of this section;
15-7 and
15-8 (3) a statement of the person's right to a hearing on
15-9 the occurrence of the violation, the amount of the penalty, or both
15-10 the occurrence of the violation and the amount of the penalty.
15-11 (f) Not later than the 20th day after the date on which the
15-12 notice is received, the person notified may accept the
15-13 determination of the department made under this section, including
15-14 the proposed penalty, or make a written request for a hearing on
15-15 that determination.
15-16 (g) If the person notified of the violation accepts the
15-17 determination of the department, the commissioner of public health
15-18 or that commissioner's designee shall issue an order approving the
15-19 determination and ordering that the person pay the proposed
15-20 penalty.
15-21 (h) If the person notified under Subsection (e) of this
15-22 section timely requests a hearing, the department shall:
15-23 (1) set a hearing;
15-24 (2) give written notice of the hearing to the person;
15-25 and
16-1 (3) designate a hearings examiner to conduct the
16-2 hearing.
16-3 (i) The hearings examiner shall make findings of fact and
16-4 conclusions of law and shall promptly issue to the commissioner of
16-5 public health or that commissioner's designee a proposal for
16-6 decision as to the occurrence of the violation and a recommendation
16-7 as to the amount of the proposed penalty if a penalty is determined
16-8 to be warranted.
16-9 (j) Based on the findings of fact and conclusions of law and
16-10 the recommendations of the hearings examiner, the commissioner of
16-11 public health or that commissioner's designee by order may find
16-12 that a violation has occurred and may assess a penalty or may find
16-13 that no violation has occurred.
16-14 (k) The department shall give notice of the order under
16-15 Subsection (j) of this section to the person notified. The notice
16-16 must include:
16-17 (1) separate statements of the findings of fact and
16-18 conclusions of law;
16-19 (2) the amount of any penalty assessed; and
16-20 (3) a statement of the right of the person to judicial
16-21 review of the order.
16-22 (l) Not later than the 30th day after the date on which the
16-23 decision is final as provided by Chapter 2001, Government Code, the
16-24 person shall:
16-25 (1) pay the penalty;
17-1 (2) pay the penalty and file a petition for judicial
17-2 review contesting the occurrence of the violation, the amount of
17-3 the penalty, or both the occurrence of the violation and the amount
17-4 of the penalty; or
17-5 (3) without paying the penalty, file a petition for
17-6 judicial review contesting the occurrence of the violation, the
17-7 amount of the penalty, or both the occurrence of the violation and
17-8 the amount of the penalty.
17-9 (m) Within the 30-day period, a person who acts under
17-10 Subsection (l)(3) of this section may:
17-11 (1) stay enforcement of the penalty by:
17-12 (A) paying the penalty to the court for
17-13 placement in an escrow account; or
17-14 (B) giving to the court a supersedeas bond that
17-15 is approved by the court for the amount of the penalty and that is
17-16 effective until all judicial review of the order is final; or
17-17 (2) request the court to stay enforcement of the
17-18 penalty by:
17-19 (A) filing with the court a sworn affidavit of
17-20 the person stating that the person is financially unable to pay the
17-21 amount of the penalty and is financially unable to give the
17-22 supersedeas bond; and
17-23 (B) giving a copy of the affidavit to the
17-24 department by certified mail.
17-25 (n) If the department receives a copy of an affidavit under
18-1 Subsection (m)(2) of this section, the department may file with the
18-2 court, within five days after the date the copy is received, a
18-3 contest to the affidavit. The court shall hold a hearing on the
18-4 facts alleged in the affidavit as soon as practicable and shall
18-5 stay the enforcement of the penalty on finding that the alleged
18-6 facts are true. The person who files an affidavit has the burden
18-7 of proving that the person is financially unable to pay the penalty
18-8 and to give a supersedeas bond.
18-9 (o) If the person does not pay the penalty and the
18-10 enforcement of the penalty is not stayed, the department may refer
18-11 the matter to the attorney general for collection of the penalty.
18-12 (p) Judicial review of the order:
18-13 (1) is instituted by filing a petition as provided by
18-14 Subchapter G, Chapter 2001, Government Code; and
18-15 (2) is under the substantial evidence rule.
18-16 (q) If the court sustains the occurrence of the violation,
18-17 the court may uphold or reduce the amount of the penalty and order
18-18 the person to pay the full or reduced amount of the penalty. If
18-19 the court does not sustain the occurrence of the violation, the
18-20 court shall order that no penalty is owed.
18-21 (r) When the judgment of the court becomes final, the court
18-22 shall proceed under this subsection. If the person paid the amount
18-23 of the penalty under Subsection (l)(2) of this section and if that
18-24 amount is reduced or is not upheld by the court, the court shall
18-25 order that the department pay the appropriate amount plus accrued
19-1 interest to the person. The rate of the interest is the rate
19-2 charged on loans to depository institutions by the New York Federal
19-3 Reserve Bank, and the interest shall be paid for the period
19-4 beginning on the date the penalty was paid and ending on the date
19-5 the penalty is remitted. If the person paid the penalty under
19-6 Subsection (m)(1)(A) of this section or gave a supersedeas bond and
19-7 if the amount of the penalty is not upheld by the court, the court
19-8 shall order the release of the escrow account or bond. If the
19-9 person paid the penalty under Subsection (m)(1)(A) and the amount
19-10 of the penalty is reduced, the court shall order that the amount of
19-11 the penalty be paid to the department from the escrow account and
19-12 that the remainder of the account be released. If the person gave
19-13 a supersedeas bond and if the amount of the penalty is reduced, the
19-14 court shall order the release of the bond after the person pays the
19-15 amount.
19-16 (s) An administrative penalty collected under this section
19-17 shall be deposited in the state treasury to the credit of the
19-18 general revenue fund.
19-19 (t) The department may assess reasonable expenses and costs
19-20 against a person in an administrative hearing if, as a result of
19-21 the hearing, an administrative penalty is assessed against the
19-22 person. The person shall pay expenses and costs assessed under
19-23 this subsection not later than the 30th day after the date of the
19-24 order of the commissioner of public health or that commissioner's
19-25 designee requiring the payment of expenses and costs is final. The
20-1 department may refer the matter to the attorney general for
20-2 collection of the expenses and costs.
20-3 (u) If the attorney general brings an action against a
20-4 person to enforce an administrative penalty assessed under this
20-5 Act and the person is found liable for an administrative penalty,
20-6 the attorney general may recover, on behalf of the attorney general
20-7 and the department, reasonable expenses and costs.
20-8 (v) For purposes of this section, "reasonable expenses and
20-9 costs" includes expenses incurred by the department and the
20-10 attorney general in the investigation, initiation, or prosecution
20-11 of an action, including reasonable investigative costs, court
20-12 costs, attorney's fees, witness fees, and deposition expenses.
20-13 (w) Costs and expenses collected under this section shall be
20-14 deposited in the state treasury to the credit of a special account
20-15 that may be appropriated only to the department. Section 403.095,
20-16 Government Code, does not apply to the account.
20-17 SECTION 4. The Opticians' Registry Act (Article 4551-1,
20-18 Vernon's Texas Civil Statutes) is amended by adding Section 10A to
20-19 read as follows:
20-20 Sec. 10A. ADMINISTRATIVE PENALTY. (a) The department may
20-21 assess an administrative penalty against a person who violates this
20-22 Act or a rule adopted under this Act.
20-23 (b) The penalty may not exceed $1,000 for each violation.
20-24 Each day of a continuing violation constitutes a separate
20-25 violation.
21-1 (c) In determining the amount of an administrative penalty
21-2 assessed under this section, the department shall consider:
21-3 (1) the seriousness of the violation;
21-4 (2) the history of previous violations;
21-5 (3) the amount necessary to deter future violations;
21-6 (4) efforts made to correct the violation; and
21-7 (5) any other matters that justice may require.
21-8 (d) All proceedings for the assessment of an administrative
21-9 penalty under this Act are subject to Chapter 2001, Government
21-10 Code.
21-11 (e) If, after investigation of a possible violation and the
21-12 facts surrounding that possible violation, the department
21-13 determines that a violation has occurred, the department shall give
21-14 written notice of the violation to the person alleged to have
21-15 committed the violation. The notice must include:
21-16 (1) a brief summary of the alleged violation;
21-17 (2) a statement of the amount of the proposed penalty
21-18 based on the factors set forth in Subsection (c) of this section;
21-19 and
21-20 (3) a statement of the person's right to a hearing on
21-21 the occurrence of the violation, the amount of the penalty, or both
21-22 the occurrence of the violation and the amount of the penalty.
21-23 (f) Not later than the 20th day after the date on which the
21-24 notice is received, the person notified may accept the
21-25 determination of the department made under this section, including
22-1 the proposed penalty, or make a written request for a hearing on
22-2 that determination.
22-3 (g) If the person notified of the violation accepts the
22-4 determination of the department, the commissioner of public health
22-5 or that commissioner's designee shall issue an order approving the
22-6 determination and ordering that the person pay the proposed
22-7 penalty.
22-8 (h) If the person notified under Subsection (e) of this
22-9 section timely requests a hearing, the department shall:
22-10 (1) set a hearing;
22-11 (2) give written notice of the hearing to the person;
22-12 and
22-13 (3) designate a hearings examiner to conduct the
22-14 hearing.
22-15 (i) The hearings examiner shall make findings of fact and
22-16 conclusions of law and shall promptly issue to the commissioner of
22-17 public health or that commissioner's designee a proposal for
22-18 decision as to the occurrence of the violation and a recommendation
22-19 as to the amount of the proposed penalty if a penalty is determined
22-20 to be warranted.
22-21 (j) Based on the findings of fact and conclusions of law and
22-22 the recommendations of the hearings examiner, the commissioner of
22-23 public health or that commissioner's designee by order may find
22-24 that a violation has occurred and may assess a penalty or may find
22-25 that no violation has occurred.
23-1 (k) The department shall give notice of the order under
23-2 Subsection (j) of this section to the person notified. The notice
23-3 must include:
23-4 (1) separate statements of the findings of fact and
23-5 conclusions of law;
23-6 (2) the amount of any penalty assessed; and
23-7 (3) a statement of the right of the person to judicial
23-8 review of the order.
23-9 (l) Not later than the 30th day after the date on which the
23-10 decision is final as provided by Chapter 2001, Government Code, the
23-11 person shall:
23-12 (1) pay the penalty;
23-13 (2) pay the penalty and file a petition for judicial
23-14 review contesting the occurrence of the violation, the amount of
23-15 the penalty, or both the occurrence of the violation and the amount
23-16 of the penalty; or
23-17 (3) without paying the penalty, file a petition for
23-18 judicial review contesting the occurrence of the violation, the
23-19 amount of the penalty, or both the occurrence of the violation and
23-20 the amount of the penalty.
23-21 (m) Within the 30-day period, a person who acts under
23-22 Subsection (l)(3) of this section may:
23-23 (1) stay enforcement of the penalty by:
23-24 (A) paying the penalty to the court for
23-25 placement in an escrow account; or
24-1 (B) giving to the court a supersedeas bond that
24-2 is approved by the court for the amount of the penalty and that is
24-3 effective until all judicial review of the order is final; or
24-4 (2) request the court to stay enforcement of the
24-5 penalty by:
24-6 (A) filing with the court a sworn affidavit of
24-7 the person stating that the person is financially unable to pay the
24-8 amount of the penalty and is financially unable to give the
24-9 supersedeas bond; and
24-10 (B) giving a copy of the affidavit to the
24-11 department by certified mail.
24-12 (n) If the department receives a copy of an affidavit under
24-13 Subsection (m)(2) of this section, the department may file with the
24-14 court, within five days after the date the copy is received, a
24-15 contest to the affidavit. The court shall hold a hearing on the
24-16 facts alleged in the affidavit as soon as practicable and shall
24-17 stay the enforcement of the penalty on finding that the alleged
24-18 facts are true. The person who files an affidavit has the burden
24-19 of proving that the person is financially unable to pay the penalty
24-20 and to give a supersedeas bond.
24-21 (o) If the person does not pay the penalty and the
24-22 enforcement of the penalty is not stayed, the department may refer
24-23 the matter to the attorney general for collection of the penalty.
24-24 (p) Judicial review of the order:
24-25 (1) is instituted by filing a petition as provided by
25-1 Subchapter G, Chapter 2001, Government Code; and
25-2 (2) is under the substantial evidence rule.
25-3 (q) If the court sustains the occurrence of the violation,
25-4 the court may uphold or reduce the amount of the penalty and order
25-5 the person to pay the full or reduced amount of the penalty. If
25-6 the court does not sustain the occurrence of the violation, the
25-7 court shall order that no penalty is owed.
25-8 (r) When the judgment of the court becomes final, the court
25-9 shall proceed under this subsection. If the person paid the amount
25-10 of the penalty under Subsection (l)(2) of this section and if that
25-11 amount is reduced or is not upheld by the court, the court shall
25-12 order that the department pay the appropriate amount plus accrued
25-13 interest to the person. The rate of the interest is the rate
25-14 charged on loans to depository institutions by the New York Federal
25-15 Reserve Bank, and the interest shall be paid for the period
25-16 beginning on the date the penalty was paid and ending on the date
25-17 the penalty is remitted. If the person paid the penalty under
25-18 Subsection (m)(1)(A) of this section or gave a supersedeas bond and
25-19 if the amount of the penalty is not upheld by the court, the court
25-20 shall order the release of the escrow account or bond. If the
25-21 person paid the penalty under Subsection (m)(1)(A) and the amount
25-22 of the penalty is reduced, the court shall order that the amount of
25-23 the penalty be paid to the department from the escrow account and
25-24 that the remainder of the account be released. If the person gave
25-25 a supersedeas bond and if the amount of the penalty is reduced, the
26-1 court shall order the release of the bond after the person pays the
26-2 amount.
26-3 (s) An administrative penalty collected under this section
26-4 shall be deposited in the state treasury to the credit of the
26-5 general revenue fund.
26-6 (t) The department may assess reasonable expenses and costs
26-7 against a person in an administrative hearing if, as a result of
26-8 the hearing, an administrative penalty is assessed against the
26-9 person. The person shall pay expenses and costs assessed under
26-10 this subsection not later than the 30th day after the date of the
26-11 order of the commissioner of public health or that commissioner's
26-12 designee requiring the payment of expenses and costs is final. The
26-13 department may refer the matter to the attorney general for
26-14 collection of the expenses and costs.
26-15 (u) If the attorney general brings an action against a
26-16 person to enforce an administrative penalty assessed under this Act
26-17 and the person is found liable for an administrative penalty, the
26-18 attorney general may recover, on behalf of the attorney general and
26-19 the department, reasonable expenses and costs.
26-20 (v) For purposes of this section, "reasonable expenses and
26-21 costs" includes expenses incurred by the department and the
26-22 attorney general in the investigation, initiation, or prosecution
26-23 of an action, including reasonable investigative costs, court
26-24 costs, attorney's fees, witness fees, and deposition expenses.
26-25 (w) Costs and expenses collected under this section shall
27-1 be deposited in the state treasury to the credit of a special
27-2 account that may be appropriated only to the department. Section
27-3 403.095, Government Code, does not apply to the account.
27-4 SECTION 5. This Act takes effect September 1, 1997. The
27-5 change in law made by this Act applies only to a violation that
27-6 occurs on or after the effective date of this Act. A violation
27-7 that occurs before the effective date of this Act is covered by the
27-8 law in effect when the violation was committed.
27-9 SECTION 6. The importance of this legislation and the
27-10 crowded condition of the calendars in both houses create an
27-11 emergency and an imperative public necessity that the
27-12 constitutional rule requiring bills to be read on three several
27-13 days in each house be suspended, and this rule is hereby suspended.