1-1 By: Moncrief S.B. No. 702 1-2 (In the Senate - Filed February 21, 1997; February 25, 1997, 1-3 read first time and referred to Committee on Jurisprudence; 1-4 March 25, 1997, reported favorably by the following vote: Yeas 7, 1-5 Nays 0; March 25, 1997, sent to printer.) 1-6 A BILL TO BE ENTITLED 1-7 AN ACT 1-8 relating to the imposition of administrative penalties under 1-9 certain professional licensing programs. 1-10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-11 SECTION 1. Chapter 752, Acts of the 69th Legislature, 1-12 Regular Session, 1985 (Article 4512k, Vernon's Texas Civil 1-13 Statutes), is amended by adding Section 13A to read as follows: 1-14 Sec. 13A. ADMINISTRATIVE PENALTY. (a) The department may 1-15 assess an administrative penalty against a person who violates this 1-16 Act or a rule adopted under this Act. 1-17 (b) The penalty may not exceed $1,000 for each violation. 1-18 Each day of a continuing violation constitutes a separate 1-19 violation. 1-20 (c) In determining the amount of an administrative penalty 1-21 assessed under this section, the department shall consider: 1-22 (1) the seriousness of the violation; 1-23 (2) the history of previous violations; 1-24 (3) the amount necessary to deter future violations; 1-25 (4) efforts made to correct the violation; and 1-26 (5) any other matters that justice may require. 1-27 (d) All proceedings for the assessment of an administrative 1-28 penalty under this Act are subject to Chapter 2001, Government 1-29 Code. 1-30 (e) If, after investigation of a possible violation and the 1-31 facts surrounding that possible violation, the department 1-32 determines that a violation has occurred, the department shall give 1-33 written notice of the violation to the person alleged to have 1-34 committed the violation. The notice must include: 1-35 (1) a brief summary of the alleged violation; 1-36 (2) a statement of the amount of the proposed penalty 1-37 based on the factors set forth in Subsection (c) of this section; 1-38 and 1-39 (3) a statement of the person's right to a hearing on 1-40 the occurrence of the violation, the amount of the penalty, or both 1-41 the occurrence of the violation and the amount of the penalty. 1-42 (f) Not later than the 20th day after the date on which the 1-43 notice is received, the person notified may accept the 1-44 determination of the department made under this section, including 1-45 the proposed penalty, or make a written request for a hearing on 1-46 that determination. 1-47 (g) If the person notified of the violation accepts the 1-48 determination of the department, the commissioner of public health 1-49 or that commissioner's designee shall issue an order approving the 1-50 determination and ordering that the person pay the proposed 1-51 penalty. 1-52 (h) If the person notified under Subsection (e) of this 1-53 section timely requests a hearing, the department shall: 1-54 (1) set a hearing; 1-55 (2) give written notice of the hearing to the person; 1-56 and 1-57 (3) designate a hearings examiner to conduct the 1-58 hearing. 1-59 (i) The hearings examiner shall make findings of fact and 1-60 conclusions of law and shall promptly issue to the commissioner of 1-61 public health or that commissioner's designee a proposal for 1-62 decision as to the occurrence of the violation and a recommendation 1-63 as to the amount of the proposed penalty if a penalty is determined 1-64 to be warranted. 2-1 (j) Based on the findings of fact and conclusions of law and 2-2 the recommendations of the hearings examiner, the commissioner of 2-3 public health or that commissioner's designee by order may find 2-4 that a violation has occurred and may assess a penalty or may find 2-5 that no violation has occurred. 2-6 (k) The department shall give notice of the order under 2-7 Subsection (j) of this section to the person notified. The notice 2-8 must include: 2-9 (1) separate statements of the findings of fact and 2-10 conclusions of law; 2-11 (2) the amount of any penalty assessed; and 2-12 (3) a statement of the right of the person to judicial 2-13 review of the order. 2-14 (l) Not later than the 30th day after the date on which the 2-15 decision is final as provided by Chapter 2001, Government Code, the 2-16 person shall: 2-17 (1) pay the penalty; 2-18 (2) pay the penalty and file a petition for judicial 2-19 review contesting the occurrence of the violation, the amount of 2-20 the penalty, or both the occurrence of the violation and the amount 2-21 of the penalty; or 2-22 (3) without paying the penalty, file a petition for 2-23 judicial review contesting the occurrence of the violation, the 2-24 amount of the penalty, or both the occurrence of the violation and 2-25 the amount of the penalty. 2-26 (m) Within the 30-day period, a person who acts under 2-27 Subsection (l)(3) of this section may: 2-28 (1) stay enforcement of the penalty by: 2-29 (A) paying the penalty to the court for 2-30 placement in an escrow account; or 2-31 (B) giving to the court a supersedeas bond that 2-32 is approved by the court for the amount of the penalty and that is 2-33 effective until all judicial review of the order is final; or 2-34 (2) request the court to stay enforcement of the 2-35 penalty by: 2-36 (A) filing with the court a sworn affidavit of 2-37 the person stating that the person is financially unable to pay the 2-38 amount of the penalty and is financially unable to give the 2-39 supersedeas bond; and 2-40 (B) giving a copy of the affidavit to the 2-41 department by certified mail. 2-42 (n) If the department receives a copy of an affidavit under 2-43 Subsection (m)(2) of this section, the department may file with the 2-44 court, within five days after the date the copy is received, a 2-45 contest to the affidavit. The court shall hold a hearing on the 2-46 facts alleged in the affidavit as soon as practicable and shall 2-47 stay the enforcement of the penalty on finding that the alleged 2-48 facts are true. The person who files an affidavit has the burden 2-49 of proving that the person is financially unable to pay the penalty 2-50 and to give a supersedeas bond. 2-51 (o) If the person does not pay the penalty and the 2-52 enforcement of the penalty is not stayed, the department may refer 2-53 the matter to the attorney general for collection of the penalty. 2-54 (p) Judicial review of the order: 2-55 (1) is instituted by filing a petition as provided by 2-56 Subchapter G, Chapter 2001, Government Code; and 2-57 (2) is under the substantial evidence rule. 2-58 (q) If the court sustains the occurrence of the violation, 2-59 the court may uphold or reduce the amount of the penalty and order 2-60 the person to pay the full or reduced amount of the penalty. If 2-61 the court does not sustain the occurrence of the violation, the 2-62 court shall order that no penalty is owed. 2-63 (r) When the judgment of the court becomes final, the court 2-64 shall proceed under this subsection. If the person paid the amount 2-65 of the penalty under Subsection (l)(2) of this section and if that 2-66 amount is reduced or is not upheld by the court, the court shall 2-67 order that the department pay the appropriate amount plus accrued 2-68 interest to the person. The rate of the interest is the rate 2-69 charged on loans to depository institutions by the New York Federal 3-1 Reserve Bank, and the interest shall be paid for the period 3-2 beginning on the date the penalty was paid and ending on the date 3-3 the penalty is remitted. If the person paid the penalty under 3-4 Subsection (m)(1)(A) of this section or gave a supersedeas bond and 3-5 if the amount of the penalty is not upheld by the court, the court 3-6 shall order the release of the escrow account or bond. If the 3-7 person paid the penalty under Subsection (m)(1)(A) and the amount 3-8 of the penalty is reduced, the court shall order that the amount of 3-9 the penalty be paid to the department from the escrow account and 3-10 that the remainder of the account be released. If the person gave 3-11 a supersedeas bond and if the amount of the penalty is reduced, the 3-12 court shall order the release of the bond after the person pays the 3-13 amount. 3-14 (s) An administrative penalty collected under this section 3-15 shall be deposited in the state treasury to the credit of the 3-16 general revenue fund. 3-17 (t) The department may assess reasonable expenses and costs 3-18 against a person in an administrative hearing if, as a result of 3-19 the hearing, an administrative penalty is assessed against the 3-20 person. The person shall pay expenses and costs assessed under 3-21 this subsection not later than the 30th day after the date of the 3-22 order of the commissioner of public health or that commissioner's 3-23 designee requiring the payment of expenses and costs is final. The 3-24 department may refer the matter to the attorney general for 3-25 collection of the expenses and costs. 3-26 (u) If the attorney general brings an action against a 3-27 person to enforce an administrative penalty assessed under this Act 3-28 and the person is found liable for an administrative penalty, the 3-29 attorney general may recover, on behalf of the attorney general and 3-30 the department, reasonable expenses and costs. 3-31 (v) For purposes of this section, "reasonable expenses and 3-32 costs" includes expenses incurred by the department and the 3-33 attorney general in the investigation, initiation, or prosecution 3-34 of an action, including reasonable investigative costs, court 3-35 costs, attorney's fees, witness fees, and deposition expenses. 3-36 (w) Costs and expenses collected under this section shall be 3-37 deposited in the state treasury to the credit of a special account 3-38 that may be appropriated only to the department. Section 403.095, 3-39 Government Code, does not apply to the account. 3-40 SECTION 2. Chapter 829, Acts of the 69th Legislature, 3-41 Regular Session, 1985 (Article 4512l, Vernon's Texas Civil 3-42 Statutes), is amended by adding Section 13A to read as follows: 3-43 Sec. 13A. ADMINISTRATIVE PENALTY. (a) The department may 3-44 assess an administrative penalty against a person who violates this 3-45 Act or a rule adopted under this Act. 3-46 (b) The penalty may not exceed $1,000 for each violation. 3-47 Each day of a continuing violation constitutes a separate 3-48 violation. 3-49 (c) In determining the amount of an administrative penalty 3-50 assessed under this section, the department shall consider: 3-51 (1) the seriousness of the violation; 3-52 (2) the history of previous violations; 3-53 (3) the amount necessary to deter future violations; 3-54 (4) efforts made to correct the violation; and 3-55 (5) any other matters that justice may require. 3-56 (d) All proceedings for the assessment of an administrative 3-57 penalty under this Act are subject to Chapter 2001, Government 3-58 Code. 3-59 (e) If, after investigation of a possible violation and the 3-60 facts surrounding that possible violation, the department 3-61 determines that a violation has occurred, the department shall give 3-62 written notice of the violation to the person alleged to have 3-63 committed the violation. The notice must include: 3-64 (1) a brief summary of the alleged violation; 3-65 (2) a statement of the amount of the proposed penalty 3-66 based on the factors set forth in Subsection (c) of this section; 3-67 and 3-68 (3) a statement of the person's right to a hearing on 3-69 the occurrence of the violation, the amount of the penalty, or both 4-1 the occurrence of the violation and the amount of the penalty. 4-2 (f) Not later than the 20th day after the date on which the 4-3 notice is received, the person notified may accept the 4-4 determination of the department made under this section, including 4-5 the proposed penalty, or make a written request for a hearing on 4-6 that determination. 4-7 (g) If the person notified of the violation accepts the 4-8 determination of the department, the commissioner of public health 4-9 or that commissioner's designee shall issue an order approving the 4-10 determination and ordering that the person pay the proposed 4-11 penalty. 4-12 (h) If the person notified under Subsection (e) of this 4-13 section timely requests a hearing, the department shall: 4-14 (1) set a hearing; 4-15 (2) give written notice of the hearing to the person; 4-16 and 4-17 (3) designate a hearings examiner to conduct the 4-18 hearing. 4-19 (i) The hearings examiner shall make findings of fact and 4-20 conclusions of law and shall promptly issue to the commissioner of 4-21 public health or that commissioner's designee a proposal for 4-22 decision as to the occurrence of the violation and a recommendation 4-23 as to the amount of the proposed penalty if a penalty is determined 4-24 to be warranted. 4-25 (j) Based on the findings of fact and conclusions of law and 4-26 the recommendations of the hearings examiner, the commissioner of 4-27 public health or that commissioner's designee by order may find 4-28 that a violation has occurred and may assess a penalty or may find 4-29 that no violation has occurred. 4-30 (k) The department shall give notice of the order under 4-31 Subsection (j) of this section to the person notified. The notice 4-32 must include: 4-33 (1) separate statements of the findings of fact and 4-34 conclusions of law; 4-35 (2) the amount of any penalty assessed; and 4-36 (3) a statement of the right of the person to judicial 4-37 review of the order. 4-38 (l) Not later than the 30th day after the date on which the 4-39 decision is final as provided by Chapter 2001, Government Code, the 4-40 person shall: 4-41 (1) pay the penalty; 4-42 (2) pay the penalty and file a petition for judicial 4-43 review contesting the occurrence of the violation, the amount of 4-44 the penalty, or both the occurrence of the violation and the amount 4-45 of the penalty; or 4-46 (3) without paying the penalty, file a petition for 4-47 judicial review contesting the occurrence of the violation, the 4-48 amount of the penalty, or both the occurrence of the violation and 4-49 the amount of the penalty. 4-50 (m) Within the 30-day period, a person who acts under 4-51 Subsection (l)(3) of this section may: 4-52 (1) stay enforcement of the penalty by: 4-53 (A) paying the penalty to the court for 4-54 placement in an escrow account; or 4-55 (B) giving to the court a supersedeas bond that 4-56 is approved by the court for the amount of the penalty and that is 4-57 effective until all judicial review of the order is final; or 4-58 (2) request the court to stay enforcement of the 4-59 penalty by: 4-60 (A) filing with the court a sworn affidavit of 4-61 the person stating that the person is financially unable to pay the 4-62 amount of the penalty and is financially unable to give the 4-63 supersedeas bond; and 4-64 (B) giving a copy of the affidavit to the 4-65 department by certified mail. 4-66 (n) If the department receives a copy of an affidavit under 4-67 Subsection (m)(2) of this section, the department may file with the 4-68 court, within five days after the date the copy is received, a 4-69 contest to the affidavit. The court shall hold a hearing on the 5-1 facts alleged in the affidavit as soon as practicable and shall 5-2 stay the enforcement of the penalty on finding that the alleged 5-3 facts are true. The person who files an affidavit has the burden 5-4 of proving that the person is financially unable to pay the penalty 5-5 and to give a supersedeas bond. 5-6 (o) If the person does not pay the penalty and the 5-7 enforcement of the penalty is not stayed, the department may refer 5-8 the matter to the attorney general for collection of the penalty. 5-9 (p) Judicial review of the order: 5-10 (1) is instituted by filing a petition as provided by 5-11 Subchapter G, Chapter 2001, Government Code; and 5-12 (2) is under the substantial evidence rule. 5-13 (q) If the court sustains the occurrence of the violation, 5-14 the court may uphold or reduce the amount of the penalty and order 5-15 the person to pay the full or reduced amount of the penalty. If 5-16 the court does not sustain the occurrence of the violation, the 5-17 court shall order that no penalty is owed. 5-18 (r) When the judgment of the court becomes final, the court 5-19 shall proceed under this subsection. If the person paid the amount 5-20 of the penalty under Subsection (l)(2) of this section and if that 5-21 amount is reduced or is not upheld by the court, the court shall 5-22 order that the department pay the appropriate amount plus accrued 5-23 interest to the person. The rate of the interest is the rate 5-24 charged on loans to depository institutions by the New York Federal 5-25 Reserve Bank, and the interest shall be paid for the period 5-26 beginning on the date the penalty was paid and ending on the date 5-27 the penalty is remitted. If the person paid the penalty under 5-28 Subsection (m)(1)(A) of this section or gave a supersedeas bond and 5-29 if the amount of the penalty is not upheld by the court, the court 5-30 shall order the release of the escrow account or bond. If the 5-31 person paid the penalty under Subsection (m)(1)(A) and the amount 5-32 of the penalty is reduced, the court shall order that the amount of 5-33 the penalty be paid to the department from the escrow account and 5-34 that the remainder of the account be released. If the person gave 5-35 a supersedeas bond and if the amount of the penalty is reduced, the 5-36 court shall order the release of the bond after the person pays the 5-37 amount. 5-38 (s) An administrative penalty collected under this section 5-39 shall be deposited in the state treasury to the credit of the 5-40 general revenue fund. 5-41 (t) The department may assess reasonable expenses and costs 5-42 against a person in an administrative hearing if, as a result of 5-43 the hearing, an administrative penalty is assessed against the 5-44 person. The person shall pay expenses and costs assessed under 5-45 this subsection not later than the 30th day after the date of the 5-46 order of the commissioner of public health or that commissioner's 5-47 designee requiring the payment of expenses and costs is final. The 5-48 department may refer the matter to the attorney general for 5-49 collection of the expenses and costs. 5-50 (u) If the attorney general brings an action against a 5-51 person to enforce an administrative penalty assessed under this Act 5-52 and the person is found liable for an administrative penalty, the 5-53 attorney general may recover, on behalf of the attorney general and 5-54 the department, reasonable expenses and costs. 5-55 (v) For purposes of this section, "reasonable expenses and 5-56 costs" includes expenses incurred by the department and the 5-57 attorney general in the investigation, initiation, or prosecution 5-58 of an action, including reasonable investigative costs, court 5-59 costs, attorney's fees, witness fees, and deposition expenses. 5-60 (w) Costs and expenses collected under this section shall be 5-61 deposited in the state treasury to the credit of a special account 5-62 that may be appropriated only to the department. Section 403.095, 5-63 Government Code, does not apply to the account. 5-64 SECTION 3. The Medical Radiologic Technologist Certification 5-65 Act (Article 4512m, Vernon's Texas Civil Statutes) is amended by 5-66 adding Section 2.15 to read as follows: 5-67 Sec. 2.15. ADMINISTRATIVE PENALTY. (a) The department may 5-68 assess an administrative penalty against a person who violates this 5-69 Act or a rule adopted under this Act. 6-1 (b) The penalty may not exceed $1,000 for each violation. 6-2 Each day of a continuing violation constitutes a separate 6-3 violation. 6-4 (c) In determining the amount of an administrative penalty 6-5 assessed under this section, the department shall consider: 6-6 (1) the seriousness of the violation; 6-7 (2) the history of previous violations; 6-8 (3) the amount necessary to deter future violations; 6-9 (4) efforts made to correct the violation; and 6-10 (5) any other matters that justice may require. 6-11 (d) All proceedings for the assessment of an administrative 6-12 penalty under this Act are subject to Chapter 2001, Government 6-13 Code. 6-14 (e) If, after investigation of a possible violation and the 6-15 facts surrounding that possible violation, the department 6-16 determines that a violation has occurred, the department shall give 6-17 written notice of the violation to the person alleged to have 6-18 committed the violation. The notice must include: 6-19 (1) a brief summary of the alleged violation; 6-20 (2) a statement of the amount of the proposed penalty 6-21 based on the factors set forth in Subsection (c) of this section; 6-22 and 6-23 (3) a statement of the person's right to a hearing on 6-24 the occurrence of the violation, the amount of the penalty, or both 6-25 the occurrence of the violation and the amount of the penalty. 6-26 (f) Not later than the 20th day after the date on which the 6-27 notice is received, the person notified may accept the 6-28 determination of the department made under this section, including 6-29 the proposed penalty, or make a written request for a hearing on 6-30 that determination. 6-31 (g) If the person notified of the violation accepts the 6-32 determination of the department, the commissioner of public health 6-33 or that commissioner's designee shall issue an order approving the 6-34 determination and ordering that the person pay the proposed 6-35 penalty. 6-36 (h) If the person notified under Subsection (e) of this 6-37 section timely requests a hearing, the department shall: 6-38 (1) set a hearing; 6-39 (2) give written notice of the hearing to the person; 6-40 and 6-41 (3) designate a hearings examiner to conduct the 6-42 hearing. 6-43 (i) The hearings examiner shall make findings of fact and 6-44 conclusions of law and shall promptly issue to the commissioner of 6-45 public health or that commissioner's designee a proposal for 6-46 decision as to the occurrence of the violation and a recommendation 6-47 as to the amount of the proposed penalty if a penalty is determined 6-48 to be warranted. 6-49 (j) Based on the findings of fact and conclusions of law and 6-50 the recommendations of the hearings examiner, the commissioner of 6-51 public health or that commissioner's designee by order may find 6-52 that a violation has occurred and may assess a penalty or may find 6-53 that no violation has occurred. 6-54 (k) The department shall give notice of the order under 6-55 Subsection (j) of this section to the person notified. The notice 6-56 must include: 6-57 (1) separate statements of the findings of fact and 6-58 conclusions of law; 6-59 (2) the amount of any penalty assessed; and 6-60 (3) a statement of the right of the person to judicial 6-61 review of the order. 6-62 (l) Not later than the 30th day after the date on which the 6-63 decision is final as provided by Chapter 2001, Government Code, the 6-64 person shall: 6-65 (1) pay the penalty; 6-66 (2) pay the penalty and file a petition for judicial 6-67 review contesting the occurrence of the violation, the amount of 6-68 the penalty, or both the occurrence of the violation and the amount 6-69 of the penalty; or 7-1 (3) without paying the penalty, file a petition for 7-2 judicial review contesting the occurrence of the violation, the 7-3 amount of the penalty, or both the occurrence of the violation and 7-4 the amount of the penalty. 7-5 (m) Within the 30-day period, a person who acts under 7-6 Subsection (l)(3) of this section may: 7-7 (1) stay enforcement of the penalty by: 7-8 (A) paying the penalty to the court for 7-9 placement in an escrow account; or 7-10 (B) giving to the court a supersedeas bond that 7-11 is approved by the court for the amount of the penalty and that is 7-12 effective until all judicial review of the order is final; or 7-13 (2) request the court to stay enforcement of the 7-14 penalty by: 7-15 (A) filing with the court a sworn affidavit of 7-16 the person stating that the person is financially unable to pay the 7-17 amount of the penalty and is financially unable to give the 7-18 supersedeas bond; and 7-19 (B) giving a copy of the affidavit to the 7-20 department by certified mail. 7-21 (n) If the department receives a copy of an affidavit under 7-22 Subsection (m)(2) of this section, the department may file with the 7-23 court, within five days after the date the copy is received, a 7-24 contest to the affidavit. The court shall hold a hearing on the 7-25 facts alleged in the affidavit as soon as practicable and shall 7-26 stay the enforcement of the penalty on finding that the alleged 7-27 facts are true. The person who files an affidavit has the burden 7-28 of proving that the person is financially unable to pay the penalty 7-29 and to give a supersedeas bond. 7-30 (o) If the person does not pay the penalty and the 7-31 enforcement of the penalty is not stayed, the department may refer 7-32 the matter to the attorney general for collection of the penalty. 7-33 (p) Judicial review of the order: 7-34 (1) is instituted by filing a petition as provided by 7-35 Subchapter G, Chapter 2001, Government Code; and 7-36 (2) is under the substantial evidence rule. 7-37 (q) If the court sustains the occurrence of the violation, 7-38 the court may uphold or reduce the amount of the penalty and order 7-39 the person to pay the full or reduced amount of the penalty. If 7-40 the court does not sustain the occurrence of the violation, the 7-41 court shall order that no penalty is owed. 7-42 (r) When the judgment of the court becomes final, the court 7-43 shall proceed under this subsection. If the person paid the amount 7-44 of the penalty under Subsection (l)(2) of this section and if that 7-45 amount is reduced or is not upheld by the court, the court shall 7-46 order that the department pay the appropriate amount plus accrued 7-47 interest to the person. The rate of the interest is the rate 7-48 charged on loans to depository institutions by the New York Federal 7-49 Reserve Bank, and the interest shall be paid for the period 7-50 beginning on the date the penalty was paid and ending on the date 7-51 the penalty is remitted. If the person paid the penalty under 7-52 Subsection (m)(1)(A) of this section or gave a supersedeas bond and 7-53 if the amount of the penalty is not upheld by the court, the court 7-54 shall order the release of the escrow account or bond. If the 7-55 person paid the penalty under Subsection (m)(1)(A) and the amount 7-56 of the penalty is reduced, the court shall order that the amount of 7-57 the penalty be paid to the department from the escrow account and 7-58 that the remainder of the account be released. If the person gave 7-59 a supersedeas bond and if the amount of the penalty is reduced, the 7-60 court shall order the release of the bond after the person pays the 7-61 amount. 7-62 (s) An administrative penalty collected under this section 7-63 shall be deposited in the state treasury to the credit of the 7-64 general revenue fund. 7-65 (t) The department may assess reasonable expenses and costs 7-66 against a person in an administrative hearing if, as a result of 7-67 the hearing, an administrative penalty is assessed against the 7-68 person. The person shall pay expenses and costs assessed under 7-69 this subsection not later than the 30th day after the date of the 8-1 order of the commissioner of public health or that commissioner's 8-2 designee requiring the payment of expenses and costs is final. The 8-3 department may refer the matter to the attorney general for 8-4 collection of the expenses and costs. 8-5 (u) If the attorney general brings an action against a 8-6 person to enforce an administrative penalty assessed under this 8-7 Act and the person is found liable for an administrative penalty, 8-8 the attorney general may recover, on behalf of the attorney general 8-9 and the department, reasonable expenses and costs. 8-10 (v) For purposes of this section, "reasonable expenses and 8-11 costs" includes expenses incurred by the department and the 8-12 attorney general in the investigation, initiation, or prosecution 8-13 of an action, including reasonable investigative costs, court 8-14 costs, attorney's fees, witness fees, and deposition expenses. 8-15 (w) Costs and expenses collected under this section shall be 8-16 deposited in the state treasury to the credit of a special account 8-17 that may be appropriated only to the department. Section 403.095, 8-18 Government Code, does not apply to the account. 8-19 SECTION 4. The Opticians' Registry Act (Article 4551-1, 8-20 Vernon's Texas Civil Statutes) is amended by adding Section 10A to 8-21 read as follows: 8-22 Sec. 10A. ADMINISTRATIVE PENALTY. (a) The department may 8-23 assess an administrative penalty against a person who violates this 8-24 Act or a rule adopted under this Act. 8-25 (b) The penalty may not exceed $1,000 for each violation. 8-26 Each day of a continuing violation constitutes a separate 8-27 violation. 8-28 (c) In determining the amount of an administrative penalty 8-29 assessed under this section, the department shall consider: 8-30 (1) the seriousness of the violation; 8-31 (2) the history of previous violations; 8-32 (3) the amount necessary to deter future violations; 8-33 (4) efforts made to correct the violation; and 8-34 (5) any other matters that justice may require. 8-35 (d) All proceedings for the assessment of an administrative 8-36 penalty under this Act are subject to Chapter 2001, Government 8-37 Code. 8-38 (e) If, after investigation of a possible violation and the 8-39 facts surrounding that possible violation, the department 8-40 determines that a violation has occurred, the department shall give 8-41 written notice of the violation to the person alleged to have 8-42 committed the violation. The notice must include: 8-43 (1) a brief summary of the alleged violation; 8-44 (2) a statement of the amount of the proposed penalty 8-45 based on the factors set forth in Subsection (c) of this section; 8-46 and 8-47 (3) a statement of the person's right to a hearing on 8-48 the occurrence of the violation, the amount of the penalty, or both 8-49 the occurrence of the violation and the amount of the penalty. 8-50 (f) Not later than the 20th day after the date on which the 8-51 notice is received, the person notified may accept the 8-52 determination of the department made under this section, including 8-53 the proposed penalty, or make a written request for a hearing on 8-54 that determination. 8-55 (g) If the person notified of the violation accepts the 8-56 determination of the department, the commissioner of public health 8-57 or that commissioner's designee shall issue an order approving the 8-58 determination and ordering that the person pay the proposed 8-59 penalty. 8-60 (h) If the person notified under Subsection (e) of this 8-61 section timely requests a hearing, the department shall: 8-62 (1) set a hearing; 8-63 (2) give written notice of the hearing to the person; 8-64 and 8-65 (3) designate a hearings examiner to conduct the 8-66 hearing. 8-67 (i) The hearings examiner shall make findings of fact and 8-68 conclusions of law and shall promptly issue to the commissioner of 8-69 public health or that commissioner's designee a proposal for 9-1 decision as to the occurrence of the violation and a recommendation 9-2 as to the amount of the proposed penalty if a penalty is determined 9-3 to be warranted. 9-4 (j) Based on the findings of fact and conclusions of law and 9-5 the recommendations of the hearings examiner, the commissioner of 9-6 public health or that commissioner's designee by order may find 9-7 that a violation has occurred and may assess a penalty or may find 9-8 that no violation has occurred. 9-9 (k) The department shall give notice of the order under 9-10 Subsection (j) of this section to the person notified. The notice 9-11 must include: 9-12 (1) separate statements of the findings of fact and 9-13 conclusions of law; 9-14 (2) the amount of any penalty assessed; and 9-15 (3) a statement of the right of the person to judicial 9-16 review of the order. 9-17 (l) Not later than the 30th day after the date on which the 9-18 decision is final as provided by Chapter 2001, Government Code, the 9-19 person shall: 9-20 (1) pay the penalty; 9-21 (2) pay the penalty and file a petition for judicial 9-22 review contesting the occurrence of the violation, the amount of 9-23 the penalty, or both the occurrence of the violation and the amount 9-24 of the penalty; or 9-25 (3) without paying the penalty, file a petition for 9-26 judicial review contesting the occurrence of the violation, the 9-27 amount of the penalty, or both the occurrence of the violation and 9-28 the amount of the penalty. 9-29 (m) Within the 30-day period, a person who acts under 9-30 Subsection (l)(3) of this section may: 9-31 (1) stay enforcement of the penalty by: 9-32 (A) paying the penalty to the court for 9-33 placement in an escrow account; or 9-34 (B) giving to the court a supersedeas bond that 9-35 is approved by the court for the amount of the penalty and that is 9-36 effective until all judicial review of the order is final; or 9-37 (2) request the court to stay enforcement of the 9-38 penalty by: 9-39 (A) filing with the court a sworn affidavit of 9-40 the person stating that the person is financially unable to pay the 9-41 amount of the penalty and is financially unable to give the 9-42 supersedeas bond; and 9-43 (B) giving a copy of the affidavit to the 9-44 department by certified mail. 9-45 (n) If the department receives a copy of an affidavit under 9-46 Subsection (m)(2) of this section, the department may file with the 9-47 court, within five days after the date the copy is received, a 9-48 contest to the affidavit. The court shall hold a hearing on the 9-49 facts alleged in the affidavit as soon as practicable and shall 9-50 stay the enforcement of the penalty on finding that the alleged 9-51 facts are true. The person who files an affidavit has the burden 9-52 of proving that the person is financially unable to pay the penalty 9-53 and to give a supersedeas bond. 9-54 (o) If the person does not pay the penalty and the 9-55 enforcement of the penalty is not stayed, the department may refer 9-56 the matter to the attorney general for collection of the penalty. 9-57 (p) Judicial review of the order: 9-58 (1) is instituted by filing a petition as provided by 9-59 Subchapter G, Chapter 2001, Government Code; and 9-60 (2) is under the substantial evidence rule. 9-61 (q) If the court sustains the occurrence of the violation, 9-62 the court may uphold or reduce the amount of the penalty and order 9-63 the person to pay the full or reduced amount of the penalty. If 9-64 the court does not sustain the occurrence of the violation, the 9-65 court shall order that no penalty is owed. 9-66 (r) When the judgment of the court becomes final, the court 9-67 shall proceed under this subsection. If the person paid the amount 9-68 of the penalty under Subsection (l)(2) of this section and if that 9-69 amount is reduced or is not upheld by the court, the court shall 10-1 order that the department pay the appropriate amount plus accrued 10-2 interest to the person. The rate of the interest is the rate 10-3 charged on loans to depository institutions by the New York Federal 10-4 Reserve Bank, and the interest shall be paid for the period 10-5 beginning on the date the penalty was paid and ending on the date 10-6 the penalty is remitted. If the person paid the penalty under 10-7 Subsection (m)(1)(A) of this section or gave a supersedeas bond and 10-8 if the amount of the penalty is not upheld by the court, the court 10-9 shall order the release of the escrow account or bond. If the 10-10 person paid the penalty under Subsection (m)(1)(A) and the amount 10-11 of the penalty is reduced, the court shall order that the amount of 10-12 the penalty be paid to the department from the escrow account and 10-13 that the remainder of the account be released. If the person gave 10-14 a supersedeas bond and if the amount of the penalty is reduced, the 10-15 court shall order the release of the bond after the person pays the 10-16 amount. 10-17 (s) An administrative penalty collected under this section 10-18 shall be deposited in the state treasury to the credit of the 10-19 general revenue fund. 10-20 (t) The department may assess reasonable expenses and costs 10-21 against a person in an administrative hearing if, as a result of 10-22 the hearing, an administrative penalty is assessed against the 10-23 person. The person shall pay expenses and costs assessed under 10-24 this subsection not later than the 30th day after the date of the 10-25 order of the commissioner of public health or that commissioner's 10-26 designee requiring the payment of expenses and costs is final. The 10-27 department may refer the matter to the attorney general for 10-28 collection of the expenses and costs. 10-29 (u) If the attorney general brings an action against a 10-30 person to enforce an administrative penalty assessed under this Act 10-31 and the person is found liable for an administrative penalty, the 10-32 attorney general may recover, on behalf of the attorney general and 10-33 the department, reasonable expenses and costs. 10-34 (v) For purposes of this section, "reasonable expenses and 10-35 costs" includes expenses incurred by the department and the 10-36 attorney general in the investigation, initiation, or prosecution 10-37 of an action, including reasonable investigative costs, court 10-38 costs, attorney's fees, witness fees, and deposition expenses. 10-39 (w) Costs and expenses collected under this section shall 10-40 be deposited in the state treasury to the credit of a special 10-41 account that may be appropriated only to the department. Section 10-42 403.095, Government Code, does not apply to the account. 10-43 SECTION 5. This Act takes effect September 1, 1997. The 10-44 change in law made by this Act applies only to a violation that 10-45 occurs on or after the effective date of this Act. A violation 10-46 that occurs before the effective date of this Act is covered by the 10-47 law in effect when the violation was committed. 10-48 SECTION 6. The importance of this legislation and the 10-49 crowded condition of the calendars in both houses create an 10-50 emergency and an imperative public necessity that the 10-51 constitutional rule requiring bills to be read on three several 10-52 days in each house be suspended, and this rule is hereby suspended. 10-53 * * * * *