By Moncrief S.B. No. 702
75R2996 MCK-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the imposition of administrative penalties under
1-3 certain professional licensing programs.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Chapter 752, Acts of the 69th Legislature,
1-6 Regular Session, 1985 (Article 4512k, Vernon's Texas Civil
1-7 Statutes), is amended by adding Section 13A to read as follows:
1-8 Sec. 13A. ADMINISTRATIVE PENALTY. (a) The department may
1-9 assess an administrative penalty against a person who violates this
1-10 Act or a rule adopted under this Act.
1-11 (b) The penalty may not exceed $1,000 for each violation.
1-12 Each day of a continuing violation constitutes a separate
1-13 violation.
1-14 (c) In determining the amount of an administrative penalty
1-15 assessed under this section, the department shall consider:
1-16 (1) the seriousness of the violation;
1-17 (2) the history of previous violations;
1-18 (3) the amount necessary to deter future violations;
1-19 (4) efforts made to correct the violation; and
1-20 (5) any other matters that justice may require.
1-21 (d) All proceedings for the assessment of an administrative
1-22 penalty under this Act are subject to Chapter 2001, Government
1-23 Code.
1-24 (e) If, after investigation of a possible violation and the
2-1 facts surrounding that possible violation, the department
2-2 determines that a violation has occurred, the department shall give
2-3 written notice of the violation to the person alleged to have
2-4 committed the violation. The notice must include:
2-5 (1) a brief summary of the alleged violation;
2-6 (2) a statement of the amount of the proposed penalty
2-7 based on the factors set forth in Subsection (c) of this section;
2-8 and
2-9 (3) a statement of the person's right to a hearing on
2-10 the occurrence of the violation, the amount of the penalty, or both
2-11 the occurrence of the violation and the amount of the penalty.
2-12 (f) Not later than the 20th day after the date on which the
2-13 notice is received, the person notified may accept the
2-14 determination of the department made under this section, including
2-15 the proposed penalty, or make a written request for a hearing on
2-16 that determination.
2-17 (g) If the person notified of the violation accepts the
2-18 determination of the department, the commissioner of health or that
2-19 commissioner's designee shall issue an order approving the
2-20 determination and ordering that the person pay the proposed
2-21 penalty.
2-22 (h) If the person notified under Subsection (e) of this
2-23 section timely requests a hearing, the department shall:
2-24 (1) set a hearing;
2-25 (2) give written notice of the hearing to the person;
2-26 and
2-27 (3) designate a hearings examiner to conduct the
3-1 hearing.
3-2 (i) The hearings examiner shall make findings of fact and
3-3 conclusions of law and shall promptly issue to the commissioner of
3-4 health or that commissioner's designee a proposal for decision as
3-5 to the occurrence of the violation and a recommendation as to the
3-6 amount of the proposed penalty if a penalty is determined to be
3-7 warranted.
3-8 (j) Based on the findings of fact and conclusions of law and
3-9 the recommendations of the hearings examiner, the commissioner of
3-10 health or that commissioner's designee by order may find that a
3-11 violation has occurred and may assess a penalty or may find that no
3-12 violation has occurred.
3-13 (k) The department shall give notice of the order under
3-14 Subsection (j) of this section to the person notified. The notice
3-15 must include:
3-16 (1) separate statements of the findings of fact and
3-17 conclusions of law;
3-18 (2) the amount of any penalty assessed; and
3-19 (3) a statement of the right of the person to judicial
3-20 review of the order.
3-21 (l) Not later than the 30th day after the date on which the
3-22 decision is final as provided by Chapter 2001, Government Code, the
3-23 person shall:
3-24 (1) pay the penalty;
3-25 (2) pay the penalty and file a petition for judicial
3-26 review contesting the occurrence of the violation, the amount of
3-27 the penalty, or both the occurrence of the violation and the amount
4-1 of the penalty; or
4-2 (3) without paying the penalty, file a petition for
4-3 judicial review contesting the occurrence of the violation, the
4-4 amount of the penalty, or both the occurrence of the violation and
4-5 the amount of the penalty.
4-6 (m) Within the 30-day period, a person who acts under
4-7 Subsection (l)(3) of this section may:
4-8 (1) stay enforcement of the penalty by:
4-9 (A) paying the penalty to the court for
4-10 placement in an escrow account; or
4-11 (B) giving to the court a supersedeas bond that
4-12 is approved by the court for the amount of the penalty and that is
4-13 effective until all judicial review of the order is final; or
4-14 (2) request the court to stay enforcement of the
4-15 penalty by:
4-16 (A) filing with the court a sworn affidavit of
4-17 the person stating that the person is financially unable to pay the
4-18 amount of the penalty and is financially unable to give the
4-19 supersedeas bond; and
4-20 (B) giving a copy of the affidavit to the
4-21 department by certified mail.
4-22 (n) If the department receives a copy of an affidavit under
4-23 Subsection (m)(2) of this section, the department may file with the
4-24 court, within five days after the date the copy is received, a
4-25 contest to the affidavit. The court shall hold a hearing on the
4-26 facts alleged in the affidavit as soon as practicable and shall
4-27 stay the enforcement of the penalty on finding that the alleged
5-1 facts are true. The person who files an affidavit has the burden
5-2 of proving that the person is financially unable to pay the penalty
5-3 and to give a supersedeas bond.
5-4 (o) If the person does not pay the penalty and the
5-5 enforcement of the penalty is not stayed, the department may refer
5-6 the matter to the attorney general for collection of the penalty.
5-7 (p) Judicial review of the order:
5-8 (1) is instituted by filing a petition as provided by
5-9 Subchapter G, Chapter 2001, Government Code; and
5-10 (2) is under the substantial evidence rule.
5-11 (q) If the court sustains the occurrence of the violation,
5-12 the court may uphold or reduce the amount of the penalty and order
5-13 the person to pay the full or reduced amount of the penalty. If
5-14 the court does not sustain the occurrence of the violation, the
5-15 court shall order that no penalty is owed.
5-16 (r) When the judgment of the court becomes final, the court
5-17 shall proceed under this subsection. If the person paid the amount
5-18 of the penalty under Subsection (l)(2) of this section and if that
5-19 amount is reduced or is not upheld by the court, the court shall
5-20 order that the department pay the appropriate amount plus accrued
5-21 interest to the person. The rate of the interest is the rate
5-22 charged on loans to depository institutions by the New York Federal
5-23 Reserve Bank, and the interest shall be paid for the period
5-24 beginning on the date the penalty was paid and ending on the date
5-25 the penalty is remitted. If the person paid the penalty under
5-26 Subsection (m)(1)(A) of this section or gave a supersedeas bond and
5-27 if the amount of the penalty is not upheld by the court, the court
6-1 shall order the release of the escrow account or bond. If the
6-2 person paid the penalty under Subsection (m)(1)(A) and the amount
6-3 of the penalty is reduced, the court shall order that the amount of
6-4 the penalty be paid to the department from the escrow account and
6-5 that the remainder of the account be released. If the person gave
6-6 a supersedeas bond and if the amount of the penalty is reduced, the
6-7 court shall order the release of the bond after the person pays the
6-8 amount.
6-9 (s) An administrative penalty collected under this section
6-10 shall be deposited in the state treasury to the credit of the
6-11 general revenue fund.
6-12 (t) The department may assess reasonable expenses and costs
6-13 against a person in an administrative hearing if, as a result of
6-14 the hearing, an administrative penalty is assessed against the
6-15 person. The person shall pay expenses and costs assessed under
6-16 this subsection not later than the 30th day after the date of the
6-17 order of the commissioner of health or that commissioner's designee
6-18 requiring the payment of expenses and costs is final. The
6-19 department may refer the matter to the attorney general for
6-20 collection of the expenses and costs.
6-21 (u) If the attorney general brings an action against a
6-22 person to enforce an administrative penalty assessed under this Act
6-23 and the person is found liable for an administrative penalty, the
6-24 attorney general may recover, on behalf of the attorney general and
6-25 the department, reasonable expenses and costs.
6-26 (v) For purposes of this section, "reasonable expenses and
6-27 costs" includes expenses incurred by the department and the
7-1 attorney general in the investigation, initiation, or prosecution
7-2 of an action, including reasonable investigative costs, court
7-3 costs, attorney's fees, witness fees, and deposition expenses.
7-4 (w) Costs and expenses collected under this section shall be
7-5 deposited in the state treasury to the credit of a special account
7-6 that may be appropriated only to the department. Section 403.095,
7-7 Government Code, does not apply to the account.
7-8 SECTION 2. Chapter 829, Acts of the 69th Legislature,
7-9 Regular Session, 1985 (Article 4512l, Vernon's Texas Civil
7-10 Statutes), is amended by adding Section 13A to read as follows:
7-11 Sec. 13A. ADMINISTRATIVE PENALTY. (a) The department may
7-12 assess an administrative penalty against a person who violates this
7-13 Act or a rule adopted under this Act.
7-14 (b) The penalty may not exceed $1,000 for each violation.
7-15 Each day of a continuing violation constitutes a separate
7-16 violation.
7-17 (c) In determining the amount of an administrative penalty
7-18 assessed under this section, the department shall consider:
7-19 (1) the seriousness of the violation;
7-20 (2) the history of previous violations;
7-21 (3) the amount necessary to deter future violations;
7-22 (4) efforts made to correct the violation; and
7-23 (5) any other matters that justice may require.
7-24 (d) All proceedings for the assessment of an administrative
7-25 penalty under this Act are subject to Chapter 2001, Government
7-26 Code.
7-27 (e) If, after investigation of a possible violation and the
8-1 facts surrounding that possible violation, the department
8-2 determines that a violation has occurred, the department shall give
8-3 written notice of the violation to the person alleged to have
8-4 committed the violation. The notice must include:
8-5 (1) a brief summary of the alleged violation;
8-6 (2) a statement of the amount of the proposed penalty
8-7 based on the factors set forth in Subsection (c) of this section;
8-8 and
8-9 (3) a statement of the person's right to a hearing on
8-10 the occurrence of the violation, the amount of the penalty, or both
8-11 the occurrence of the violation and the amount of the penalty.
8-12 (f) Not later than the 20th day after the date on which the
8-13 notice is received, the person notified may accept the
8-14 determination of the department made under this section, including
8-15 the proposed penalty, or make a written request for a hearing on
8-16 that determination.
8-17 (g) If the person notified of the violation accepts the
8-18 determination of the department, the commissioner of health or that
8-19 commissioner's designee shall issue an order approving the
8-20 determination and ordering that the person pay the proposed
8-21 penalty.
8-22 (h) If the person notified under Subsection (e) of this
8-23 section timely requests a hearing, the department shall:
8-24 (1) set a hearing;
8-25 (2) give written notice of the hearing to the person;
8-26 and
8-27 (3) designate a hearings examiner to conduct the
9-1 hearing.
9-2 (i) The hearings examiner shall make findings of fact and
9-3 conclusions of law and shall promptly issue to the commissioner of
9-4 health or that commissioner's designee a proposal for decision as
9-5 to the occurrence of the violation and a recommendation as to the
9-6 amount of the proposed penalty if a penalty is determined to be
9-7 warranted.
9-8 (j) Based on the findings of fact and conclusions of law and
9-9 the recommendations of the hearings examiner, the commissioner of
9-10 health or that commissioner's designee by order may find that a
9-11 violation has occurred and may assess a penalty or may find that no
9-12 violation has occurred.
9-13 (k) The department shall give notice of the order under
9-14 Subsection (j) of this section to the person notified. The notice
9-15 must include:
9-16 (1) separate statements of the findings of fact and
9-17 conclusions of law;
9-18 (2) the amount of any penalty assessed; and
9-19 (3) a statement of the right of the person to judicial
9-20 review of the order.
9-21 (l) Not later than the 30th day after the date on which the
9-22 decision is final as provided by Chapter 2001, Government Code, the
9-23 person shall:
9-24 (1) pay the penalty;
9-25 (2) pay the penalty and file a petition for judicial
9-26 review contesting the occurrence of the violation, the amount of
9-27 the penalty, or both the occurrence of the violation and the amount
10-1 of the penalty; or
10-2 (3) without paying the penalty, file a petition for
10-3 judicial review contesting the occurrence of the violation, the
10-4 amount of the penalty, or both the occurrence of the violation and
10-5 the amount of the penalty.
10-6 (m) Within the 30-day period, a person who acts under
10-7 Subsection (l)(3) of this section may:
10-8 (1) stay enforcement of the penalty by:
10-9 (A) paying the penalty to the court for
10-10 placement in an escrow account; or
10-11 (B) giving to the court a supersedeas bond that
10-12 is approved by the court for the amount of the penalty and that is
10-13 effective until all judicial review of the order is final; or
10-14 (2) request the court to stay enforcement of the
10-15 penalty by:
10-16 (A) filing with the court a sworn affidavit of
10-17 the person stating that the person is financially unable to pay the
10-18 amount of the penalty and is financially unable to give the
10-19 supersedeas bond; and
10-20 (B) giving a copy of the affidavit to the
10-21 department by certified mail.
10-22 (n) If the department receives a copy of an affidavit under
10-23 Subsection (m)(2) of this section, the department may file with the
10-24 court, within five days after the date the copy is received, a
10-25 contest to the affidavit. The court shall hold a hearing on the
10-26 facts alleged in the affidavit as soon as practicable and shall
10-27 stay the enforcement of the penalty on finding that the alleged
11-1 facts are true. The person who files an affidavit has the burden
11-2 of proving that the person is financially unable to pay the penalty
11-3 and to give a supersedeas bond.
11-4 (o) If the person does not pay the penalty and the
11-5 enforcement of the penalty is not stayed, the department may refer
11-6 the matter to the attorney general for collection of the penalty.
11-7 (p) Judicial review of the order:
11-8 (1) is instituted by filing a petition as provided by
11-9 Subchapter G, Chapter 2001, Government Code; and
11-10 (2) is under the substantial evidence rule.
11-11 (q) If the court sustains the occurrence of the violation,
11-12 the court may uphold or reduce the amount of the penalty and order
11-13 the person to pay the full or reduced amount of the penalty. If
11-14 the court does not sustain the occurrence of the violation, the
11-15 court shall order that no penalty is owed.
11-16 (r) When the judgment of the court becomes final, the court
11-17 shall proceed under this subsection. If the person paid the amount
11-18 of the penalty under Subsection (l)(2) of this section and if that
11-19 amount is reduced or is not upheld by the court, the court shall
11-20 order that the department pay the appropriate amount plus accrued
11-21 interest to the person. The rate of the interest is the rate
11-22 charged on loans to depository institutions by the New York Federal
11-23 Reserve Bank, and the interest shall be paid for the period
11-24 beginning on the date the penalty was paid and ending on the date
11-25 the penalty is remitted. If the person paid the penalty under
11-26 Subsection (m)(1)(A) of this section or gave a supersedeas bond and
11-27 if the amount of the penalty is not upheld by the court, the court
12-1 shall order the release of the escrow account or bond. If the
12-2 person paid the penalty under Subsection (m)(1)(A) and the amount
12-3 of the penalty is reduced, the court shall order that the amount of
12-4 the penalty be paid to the department from the escrow account and
12-5 that the remainder of the account be released. If the person gave
12-6 a supersedeas bond and if the amount of the penalty is reduced, the
12-7 court shall order the release of the bond after the person pays the
12-8 amount.
12-9 (s) An administrative penalty collected under this section
12-10 shall be deposited in the state treasury to the credit of the
12-11 general revenue fund.
12-12 (t) The department may assess reasonable expenses and costs
12-13 against a person in an administrative hearing if, as a result of
12-14 the hearing, an administrative penalty is assessed against the
12-15 person. The person shall pay expenses and costs assessed under
12-16 this subsection not later than the 30th day after the date of the
12-17 order of the commissioner of health or that commissioner's designee
12-18 requiring the payment of expenses and costs is final. The
12-19 department may refer the matter to the attorney general for
12-20 collection of the expenses and costs.
12-21 (u) If the attorney general brings an action against a
12-22 person to enforce an administrative penalty assessed under this
12-23 Act and the person is found liable for an administrative penalty,
12-24 the attorney general may recover, on behalf of the attorney general
12-25 and the department, reasonable expenses and costs.
12-26 (v) For purposes of this section, "reasonable expenses and
12-27 costs" includes expenses incurred by the department and the
13-1 attorney general in the investigation, initiation, or prosecution
13-2 of an action, including reasonable investigative costs, court
13-3 costs, attorney's fees, witness fees, and deposition expenses.
13-4 (w) Costs and expenses collected under this section shall be
13-5 deposited in the state treasury to the credit of a special account
13-6 that may be appropriated only to the department. Section 403.095,
13-7 Government Code, does not apply to the account.
13-8 SECTION 3. The Medical Radiologic Technologist Certification
13-9 Act (Article 4512m, Vernon's Texas Civil Statutes) is amended by
13-10 adding Section 2.15 to read as follows:
13-11 Sec. 2.15. ADMINISTRATIVE PENALTY. (a) The department may
13-12 assess an administrative penalty against a person who violates this
13-13 Act or a rule adopted under this Act.
13-14 (b) The penalty may not exceed $1,000 for each violation.
13-15 Each day of a continuing violation constitutes a separate
13-16 violation.
13-17 (c) In determining the amount of an administrative penalty
13-18 assessed under this section, the department shall consider:
13-19 (1) the seriousness of the violation;
13-20 (2) the history of previous violations;
13-21 (3) the amount necessary to deter future violations;
13-22 (4) efforts made to correct the violation; and
13-23 (5) any other matters that justice may require.
13-24 (d) All proceedings for the assessment of an administrative
13-25 penalty under this Act are subject to Chapter 2001, Government
13-26 Code.
13-27 (e) If, after investigation of a possible violation and the
14-1 facts surrounding that possible violation, the department
14-2 determines that a violation has occurred, the department shall give
14-3 written notice of the violation to the person alleged to have
14-4 committed the violation. The notice must include:
14-5 (1) a brief summary of the alleged violation;
14-6 (2) a statement of the amount of the proposed penalty
14-7 based on the factors set forth in Subsection (c) of this section;
14-8 and
14-9 (3) a statement of the person's right to a hearing on
14-10 the occurrence of the violation, the amount of the penalty, or both
14-11 the occurrence of the violation and the amount of the penalty.
14-12 (f) Not later than the 20th day after the date on which the
14-13 notice is received, the person notified may accept the
14-14 determination of the department made under this section, including
14-15 the proposed penalty, or make a written request for a hearing on
14-16 that determination.
14-17 (g) If the person notified of the violation accepts the
14-18 determination of the department, the commissioner of health or that
14-19 commissioner's designee shall issue an order approving the
14-20 determination and ordering that the person pay the proposed
14-21 penalty.
14-22 (h) If the person notified under Subsection (e) of this
14-23 section timely requests a hearing, the department shall:
14-24 (1) set a hearing;
14-25 (2) give written notice of the hearing to the person;
14-26 and
14-27 (3) designate a hearings examiner to conduct the
15-1 hearing.
15-2 (i) The hearings examiner shall make findings of fact and
15-3 conclusions of law and shall promptly issue to the commissioner of
15-4 health or that commissioner's designee a proposal for decision as
15-5 to the occurrence of the violation and a recommendation as to the
15-6 amount of the proposed penalty if a penalty is determined to be
15-7 warranted.
15-8 (j) Based on the findings of fact and conclusions of law and
15-9 the recommendations of the hearings examiner, the commissioner of
15-10 health or that commissioner's designee by order may find that a
15-11 violation has occurred and may assess a penalty or may find that no
15-12 violation has occurred.
15-13 (k) The department shall give notice of the order under
15-14 Subsection (j) of this section to the person notified. The notice
15-15 must include:
15-16 (1) separate statements of the findings of fact and
15-17 conclusions of law;
15-18 (2) the amount of any penalty assessed; and
15-19 (3) a statement of the right of the person to judicial
15-20 review of the order.
15-21 (l) Not later than the 30th day after the date on which the
15-22 decision is final as provided by Chapter 2001, Government Code, the
15-23 person shall:
15-24 (1) pay the penalty;
15-25 (2) pay the penalty and file a petition for judicial
15-26 review contesting the occurrence of the violation, the amount of
15-27 the penalty, or both the occurrence of the violation and the amount
16-1 of the penalty; or
16-2 (3) without paying the penalty, file a petition for
16-3 judicial review contesting the occurrence of the violation, the
16-4 amount of the penalty, or both the occurrence of the violation and
16-5 the amount of the penalty.
16-6 (m) Within the 30-day period, a person who acts under
16-7 Subsection (l)(3) of this section may:
16-8 (1) stay enforcement of the penalty by:
16-9 (A) paying the penalty to the court for
16-10 placement in an escrow account; or
16-11 (B) giving to the court a supersedeas bond that
16-12 is approved by the court for the amount of the penalty and that is
16-13 effective until all judicial review of the order is final; or
16-14 (2) request the court to stay enforcement of the
16-15 penalty by:
16-16 (A) filing with the court a sworn affidavit of
16-17 the person stating that the person is financially unable to pay the
16-18 amount of the penalty and is financially unable to give the
16-19 supersedeas bond; and
16-20 (B) giving a copy of the affidavit to the
16-21 department by certified mail.
16-22 (n) If the department receives a copy of an affidavit under
16-23 Subsection (m)(2) of this section, the department may file with the
16-24 court, within five days after the date the copy is received, a
16-25 contest to the affidavit. The court shall hold a hearing on the
16-26 facts alleged in the affidavit as soon as practicable and shall
16-27 stay the enforcement of the penalty on finding that the alleged
17-1 facts are true. The person who files an affidavit has the burden
17-2 of proving that the person is financially unable to pay the penalty
17-3 and to give a supersedeas bond.
17-4 (o) If the person does not pay the penalty and the
17-5 enforcement of the penalty is not stayed, the department may refer
17-6 the matter to the attorney general for collection of the penalty.
17-7 (p) Judicial review of the order:
17-8 (1) is instituted by filing a petition as provided by
17-9 Subchapter G, Chapter 2001, Government Code; and
17-10 (2) is under the substantial evidence rule.
17-11 (q) If the court sustains the occurrence of the violation,
17-12 the court may uphold or reduce the amount of the penalty and order
17-13 the person to pay the full or reduced amount of the penalty. If
17-14 the court does not sustain the occurrence of the violation, the
17-15 court shall order that no penalty is owed.
17-16 (r) When the judgment of the court becomes final, the court
17-17 shall proceed under this subsection. If the person paid the amount
17-18 of the penalty under Subsection (l)(2) of this section and if that
17-19 amount is reduced or is not upheld by the court, the court shall
17-20 order that the department pay the appropriate amount plus accrued
17-21 interest to the person. The rate of the interest is the rate
17-22 charged on loans to depository institutions by the New York Federal
17-23 Reserve Bank, and the interest shall be paid for the period
17-24 beginning on the date the penalty was paid and ending on the date
17-25 the penalty is remitted. If the person paid the penalty under
17-26 Subsection (m)(1)(A) of this section or gave a supersedeas bond and
17-27 if the amount of the penalty is not upheld by the court, the court
18-1 shall order the release of the escrow account or bond. If the
18-2 person paid the penalty under Subsection (m)(1)(A) and the amount
18-3 of the penalty is reduced, the court shall order that the amount of
18-4 the penalty be paid to the department from the escrow account and
18-5 that the remainder of the account be released. If the person gave
18-6 a supersedeas bond and if the amount of the penalty is reduced, the
18-7 court shall order the release of the bond after the person pays the
18-8 amount.
18-9 (s) An administrative penalty collected under this section
18-10 shall be deposited in the state treasury to the credit of the
18-11 general revenue fund.
18-12 (t) The department may assess reasonable expenses and costs
18-13 against a person in an administrative hearing if, as a result of
18-14 the hearing, an administrative penalty is assessed against the
18-15 person. The person shall pay expenses and costs assessed under
18-16 this subsection not later than the 30th day after the date of the
18-17 order of the commissioner of health or that commissioner's designee
18-18 requiring the payment of expenses and costs is final. The
18-19 department may refer the matter to the attorney general for
18-20 collection of the expenses and costs.
18-21 (u) If the attorney general brings an action against a
18-22 person to enforce an administrative penalty assessed under this
18-23 Act and the person is found liable for an administrative penalty,
18-24 the attorney general may recover, on behalf of the attorney general
18-25 and the department, reasonable expenses and costs.
18-26 (v) For purposes of this section, "reasonable expenses and
18-27 costs" includes expenses incurred by the department and the
19-1 attorney general in the investigation, initiation, or prosecution
19-2 of an action, including reasonable investigative costs, court
19-3 costs, attorney's fees, witness fees, and deposition expenses.
19-4 (w) Costs and expenses collected under this section shall be
19-5 deposited in the state treasury to the credit of a special account
19-6 that may be appropriated only to the department. Section 403.095,
19-7 Government Code, does not apply to the account.
19-8 SECTION 4. The Opticians' Registry Act (Article 4551-1,
19-9 Vernon's Texas Civil Statutes) is amended by adding Section 10A to
19-10 read as follows:
19-11 Sec. 10A. ADMINISTRATIVE PENALTY. (a) The department may
19-12 assess an administrative penalty against a person who violates this
19-13 Act or a rule adopted under this Act.
19-14 (b) The penalty may not exceed $1,000 for each violation.
19-15 Each day of a continuing violation constitutes a separate
19-16 violation.
19-17 (c) In determining the amount of an administrative penalty
19-18 assessed under this section, the department shall consider:
19-19 (1) the seriousness of the violation;
19-20 (2) the history of previous violations;
19-21 (3) the amount necessary to deter future violations;
19-22 (4) efforts made to correct the violation; and
19-23 (5) any other matters that justice may require.
19-24 (d) All proceedings for the assessment of an administrative
19-25 penalty under this Act are subject to Chapter 2001, Government
19-26 Code.
19-27 (e) If, after investigation of a possible violation and the
20-1 facts surrounding that possible violation, the department
20-2 determines that a violation has occurred, the department shall give
20-3 written notice of the violation to the person alleged to have
20-4 committed the violation. The notice must include:
20-5 (1) a brief summary of the alleged violation;
20-6 (2) a statement of the amount of the proposed penalty
20-7 based on the factors set forth in Subsection (c) of this section;
20-8 and
20-9 (3) a statement of the person's right to a hearing on
20-10 the occurrence of the violation, the amount of the penalty, or both
20-11 the occurrence of the violation and the amount of the penalty.
20-12 (f) Not later than the 20th day after the date on which the
20-13 notice is received, the person notified may accept the
20-14 determination of the department made under this section, including
20-15 the proposed penalty, or make a written request for a hearing on
20-16 that determination.
20-17 (g) If the person notified of the violation accepts the
20-18 determination of the department, the commissioner of health or that
20-19 commissioner's designee shall issue an order approving the
20-20 determination and ordering that the person pay the proposed
20-21 penalty.
20-22 (h) If the person notified under Subsection (e) of this
20-23 section timely requests a hearing, the department shall:
20-24 (1) set a hearing;
20-25 (2) give written notice of the hearing to the person;
20-26 and
20-27 (3) designate a hearings examiner to conduct the
21-1 hearing.
21-2 (i) The hearings examiner shall make findings of fact and
21-3 conclusions of law and shall promptly issue to the commissioner of
21-4 health or that commissioner's designee a proposal for decision as
21-5 to the occurrence of the violation and a recommendation as to the
21-6 amount of the proposed penalty if a penalty is determined to be
21-7 warranted.
21-8 (j) Based on the findings of fact and conclusions of law and
21-9 the recommendations of the hearings examiner, the commissioner of
21-10 health or that commissioner's designee by order may find that a
21-11 violation has occurred and may assess a penalty or may find that no
21-12 violation has occurred.
21-13 (k) The department shall give notice of the order under
21-14 Subsection (j) of this section to the person notified. The notice
21-15 must include:
21-16 (1) separate statements of the findings of fact and
21-17 conclusions of law;
21-18 (2) the amount of any penalty assessed; and
21-19 (3) a statement of the right of the person to judicial
21-20 review of the order.
21-21 (l) Not later than the 30th day after the date on which the
21-22 decision is final as provided by Chapter 2001, Government Code, the
21-23 person shall:
21-24 (1) pay the penalty;
21-25 (2) pay the penalty and file a petition for judicial
21-26 review contesting the occurrence of the violation, the amount of
21-27 the penalty, or both the occurrence of the violation and the amount
22-1 of the penalty; or
22-2 (3) without paying the penalty, file a petition for
22-3 judicial review contesting the occurrence of the violation, the
22-4 amount of the penalty, or both the occurrence of the violation and
22-5 the amount of the penalty.
22-6 (m) Within the 30-day period, a person who acts under
22-7 Subsection (l)(3) of this section may:
22-8 (1) stay enforcement of the penalty by:
22-9 (A) paying the penalty to the court for
22-10 placement in an escrow account; or
22-11 (B) giving to the court a supersedeas bond that
22-12 is approved by the court for the amount of the penalty and that is
22-13 effective until all judicial review of the order is final; or
22-14 (2) request the court to stay enforcement of the
22-15 penalty by:
22-16 (A) filing with the court a sworn affidavit of
22-17 the person stating that the person is financially unable to pay the
22-18 amount of the penalty and is financially unable to give the
22-19 supersedeas bond; and
22-20 (B) giving a copy of the affidavit to the
22-21 department by certified mail.
22-22 (n) If the department receives a copy of an affidavit under
22-23 Subsection (m)(2) of this section, the department may file with the
22-24 court, within five days after the date the copy is received, a
22-25 contest to the affidavit. The court shall hold a hearing on the
22-26 facts alleged in the affidavit as soon as practicable and shall
22-27 stay the enforcement of the penalty on finding that the alleged
23-1 facts are true. The person who files an affidavit has the burden
23-2 of proving that the person is financially unable to pay the penalty
23-3 and to give a supersedeas bond.
23-4 (o) If the person does not pay the penalty and the
23-5 enforcement of the penalty is not stayed, the department may refer
23-6 the matter to the attorney general for collection of the penalty.
23-7 (p) Judicial review of the order:
23-8 (1) is instituted by filing a petition as provided by
23-9 Subchapter G, Chapter 2001, Government Code; and
23-10 (2) is under the substantial evidence rule.
23-11 (q) If the court sustains the occurrence of the violation,
23-12 the court may uphold or reduce the amount of the penalty and order
23-13 the person to pay the full or reduced amount of the penalty. If
23-14 the court does not sustain the occurrence of the violation, the
23-15 court shall order that no penalty is owed.
23-16 (r) When the judgment of the court becomes final, the court
23-17 shall proceed under this subsection. If the person paid the amount
23-18 of the penalty under Subsection (l)(2) of this section and if that
23-19 amount is reduced or is not upheld by the court, the court shall
23-20 order that the department pay the appropriate amount plus accrued
23-21 interest to the person. The rate of the interest is the rate
23-22 charged on loans to depository institutions by the New York Federal
23-23 Reserve Bank, and the interest shall be paid for the period
23-24 beginning on the date the penalty was paid and ending on the date
23-25 the penalty is remitted. If the person paid the penalty under
23-26 Subsection (m)(1)(A) of this section or gave a supersedeas bond and
23-27 if the amount of the penalty is not upheld by the court, the court
24-1 shall order the release of the escrow account or bond. If the
24-2 person paid the penalty under Subsection (m)(1)(A) and the amount
24-3 of the penalty is reduced, the court shall order that the amount of
24-4 the penalty be paid to the department from the escrow account and
24-5 that the remainder of the account be released. If the person gave
24-6 a supersedeas bond and if the amount of the penalty is reduced, the
24-7 court shall order the release of the bond after the person pays the
24-8 amount.
24-9 (s) An administrative penalty collected under this section
24-10 shall be deposited in the state treasury to the credit of the
24-11 general revenue fund.
24-12 (t) The department may assess reasonable expenses and costs
24-13 against a person in an administrative hearing if, as a result of
24-14 the hearing, an administrative penalty is assessed against the
24-15 person. The person shall pay expenses and costs assessed under
24-16 this subsection not later than the 30th day after the date of the
24-17 order of the commissioner of health or that commissioner's designee
24-18 requiring the payment of expenses and costs is final. The
24-19 department may refer the matter to the attorney general for
24-20 collection of the expenses and costs.
24-21 (u) If the attorney general brings an action against a
24-22 person to enforce an administrative penalty assessed under this Act
24-23 and the person is found liable for an administrative penalty, the
24-24 attorney general may recover, on behalf of the attorney general and
24-25 the department, reasonable expenses and costs.
24-26 (v) For purposes of this section, "reasonable expenses and
24-27 costs" includes expenses incurred by the department and the
25-1 attorney general in the investigation, initiation, or prosecution
25-2 of an action, including reasonable investigative costs, court
25-3 costs, attorney's fees, witness fees, and deposition expenses.
25-4 (w) Costs and expenses collected under this section shall
25-5 be deposited in the state treasury to the credit of a special
25-6 account that may be appropriated only to the department. Section
25-7 403.095, Government Code, does not apply to the account.
25-8 SECTION 5. This Act takes effect September 1, 1997. The
25-9 change in law made by this Act applies only to a violation that
25-10 occurs on or after the effective date of this Act. A violation
25-11 that occurs before the effective date of this Act is covered by the
25-12 law in effect when the violation was committed.
25-13 SECTION 6. The importance of this legislation and the
25-14 crowded condition of the calendars in both houses create an
25-15 emergency and an imperative public necessity that the
25-16 constitutional rule requiring bills to be read on three several
25-17 days in each house be suspended, and this rule is hereby suspended.