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.