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.