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