By Luna S.B. No. 1115
75R4956 JMM-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to certain administrative penalties under the Texas
1-3 Workers' Compensation Act.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 415.032, Labor Code, is amended by
1-6 amending Subsection (b) and adding Subsection (c) to read as
1-7 follows:
1-8 (b) Within 20 days after the date the person receives the
1-9 notice, the person in writing may accept the determination and
1-10 recommended penalty of the commission or may make a written request
1-11 for a hearing on the occurrence of the violation, the amount of the
1-12 penalty, or both the occurrence of the violation and the amount of
1-13 the penalty [Not later than the 20th day after the date on which
1-14 notice is received, the charged party shall:]
1-15 [(1) remit the amount of the penalty to the
1-16 commission; or]
1-17 [(2) submit to the commission a written request for a
1-18 hearing].
1-19 (c) If the person accepts the determination and recommended
1-20 penalty of the commission, the commission by order shall impose the
1-21 recommended penalty. If the person does not pay the penalty
1-22 ordered under this subsection, the executive director may refer the
1-23 matter to the attorney general for collection of the amount of the
1-24 penalty. The commission may adopt rules providing for the
2-1 assessment of a late payment fee or interest at the rate provided
2-2 by Section 415.035(g) on a penalty referred to the attorney general
2-3 for collection.
2-4 SECTION 2. Section 415.033, Labor Code, is amended to read
2-5 as follows:
2-6 Sec. 415.033. RIGHT TO HEARING; FAILURE TO RESPOND. If the
2-7 person requests a hearing or fails to respond timely to the
2-8 notice[, without good cause, a charged party fails to respond] as
2-9 required under Section 415.032, the executive director shall set a
2-10 hearing and give notice of the hearing to the person [the penalty
2-11 is due and the commission shall initiate enforcement proceedings].
2-12 SECTION 3. Section 415.034, Labor Code, is amended to read
2-13 as follows:
2-14 Sec. 415.034. HEARING PROCEDURES. (a) The hearing shall be
2-15 held by an administrative law judge of [On the request of the
2-16 charged party or the executive director,] the State Office of
2-17 Administrative Hearings [shall set a hearing]. The hearing shall
2-18 be conducted in the manner provided for a contested case under
2-19 Chapter 2001, Government Code [(the administrative procedure law)].
2-20 (b) The administrative law judge [At the close of the
2-21 hearing, the hearing officer conducting the hearing] shall make
2-22 findings of fact and conclusions of law and promptly issue to the
2-23 commission a proposal for a [shall issue a written] decision about
2-24 the occurrence of the violation and the amount of a proposed
2-25 penalty. Based on the findings of fact, conclusions of law, and
2-26 proposal for a decision, the commission by order may find that a
2-27 violation has occurred and impose a penalty or may find that no
3-1 violation occurred. [If the hearing officer determines that an
3-2 administrative violation has occurred, the hearing officer shall
3-3 include in the decision the amount of the administrative penalty
3-4 assessed and shall order payment of the penalty.]
3-5 (c) The notice of the commission's order given to the person
3-6 under Chapter 2001, Government Code, must include a statement of
3-7 the right of the person to judicial review of the order [The
3-8 findings of fact, the decision, and the order shall be sent
3-9 immediately to the charged party].
3-10 SECTION 4. Section 415.035, Labor Code, is amended to read
3-11 as follows:
3-12 Sec. 415.035. JUDICIAL REVIEW. (a) Within 30 days after
3-13 the date the commission's order becomes final as provided by
3-14 Section 2001.144, Government Code, the person shall:
3-15 (1) pay the amount of the penalty;
3-16 (2) pay the amount of the penalty and file a petition
3-17 for judicial review contesting the occurrence of the violation, the
3-18 amount of the penalty, or both the occurrence of the violation and
3-19 the amount of the penalty; or
3-20 (3) without paying the amount of the penalty, file a
3-21 petition for judicial review contesting the occurrence of the
3-22 violation, the amount of the penalty, or both the occurrence of the
3-23 violation and the amount of the penalty [A decision under Section
3-24 415.034 is subject to judicial review in the manner provided for
3-25 judicial review under Chapter 2001, Government Code].
3-26 (b) Within the 30-day period, a person who acts under
3-27 Subsection (a)(3) may:
4-1 (1) stay enforcement of the penalty by:
4-2 (A) paying the amount of the penalty to the
4-3 court for placement in an escrow account; or
4-4 (B) giving to the court a supersedeas bond that
4-5 is approved by the court for the amount of the penalty and that is
4-6 effective until all judicial review of the board's order is final;
4-7 or
4-8 (2) request the court to stay enforcement of the
4-9 penalty by:
4-10 (A) filing with the court a sworn affidavit of
4-11 the person stating that the person is financially unable to pay the
4-12 amount of the penalty and is financially unable to give the
4-13 supersedeas bond; and
4-14 (B) giving a copy of the affidavit to the
4-15 executive director by certified mail [If an administrative penalty
4-16 is assessed, the person charged shall:]
4-17 [(1) forward the amount of the penalty to the
4-18 executive director for deposit in an escrow account; or]
4-19 [(2) post with the executive director a bond for the
4-20 amount of the penalty, effective until all judicial review of the
4-21 the determination is final].
4-22 (c) An executive director who receives a copy of an
4-23 affidavit under Subsection (b)(2) may file with the court, within
4-24 five days after the date the copy is received, a contest to the
4-25 affidavit. The court shall hold a hearing on the facts alleged in
4-26 the affidavit as soon as practicable and shall stay the enforcement
4-27 of the penalty on finding that the alleged facts are true. The
5-1 person who files an affidavit has the burden of proving that the
5-2 person is financially unable to pay the amount of the penalty and
5-3 to give a supersedeas bond [Failure to comply with Subsection (b)
5-4 results in a waiver of all legal rights to contest the violation
5-5 or the amount of the penalty].
5-6 (d) If the person does not pay the amount of the penalty and
5-7 the enforcement of the penalty is not stayed, the executive
5-8 director may refer the matter to the attorney general for
5-9 collection of the amount of the penalty. The commission may adopt
5-10 rules providing for the assessment of a late payment fee or
5-11 interest at the rate provided by Subsection (g) on a penalty
5-12 referred to the attorney general for collection.
5-13 (e) Judicial review of the order of the board:
5-14 (1) is instituted by filing a petition as provided by
5-15 Subchapter G, Chapter 2001, Government Code; and
5-16 (2) is under the substantial evidence rule.
5-17 (f) If the court sustains the occurrence of the violation,
5-18 the court may uphold or reduce the amount of the penalty and order
5-19 the person to pay the full or reduced amount of the penalty. If
5-20 the court does not sustain the occurrence of the violation, the
5-21 court shall order that no penalty is owed.
5-22 (g) When the judgment of the court becomes final, the court
5-23 shall proceed under this subsection. If the person paid the amount
5-24 of the penalty and if that amount is reduced or is not upheld by
5-25 the court, the court shall order that the appropriate amount plus
5-26 accrued interest be remitted to the person. The rate of the
5-27 interest is the rate charged on loans to depository institutions by
6-1 the New York Federal Reserve Bank, and the interest shall be paid
6-2 for the period beginning on the date the penalty was paid and
6-3 ending on the date the penalty is remitted. If the person gave a
6-4 supersedeas bond and if the amount of the penalty is not upheld by
6-5 the court, the court shall order the release of the bond. If the
6-6 person gave a supersedeas bond and if the amount of the penalty is
6-7 reduced, the court shall order the release of the bond after the
6-8 person pays the amount [If the court determines that the penalty
6-9 should not have been assessed or reduces the amount of the
6-10 penalty, the executive director shall:]
6-11 [(1) remit the appropriate amount, plus accrued
6-12 interest, if the administrative penalty was paid; or]
6-13 [(2) release the bond].
6-14 SECTION 5. Subchapter C, Chapter 415, Labor Code, is amended
6-15 by adding Section 415.036 to read as follows:
6-16 Sec. 415.036. DEPOSIT OF ADMINISTRATIVE PENALTY. A penalty
6-17 collected under this subchapter shall be remitted to the
6-18 comptroller for deposit in the general revenue fund.
6-19 SECTION 6. This Act takes effect September 1, 1997, and
6-20 applies to an administrative penalty assessed based on a violation
6-21 that occurs on or after that date. A violation that occurs before
6-22 the effective date of this Act is governed by the law in effect on
6-23 the date the violation occurred, and the former law is continued in
6-24 effect for that purpose.
6-25 SECTION 7. The importance of this legislation and the
6-26 crowded condition of the calendars in both houses create an
6-27 emergency and an imperative public necessity that the
7-1 constitutional rule requiring bills to be read on three several
7-2 days in each house be suspended, and this rule is hereby suspended.