By: Ellis, Nelson S.B. No. 1131
A BILL TO BE ENTITLED
AN ACT
1-1 relating to the regulation of cosmetologists; providing an
1-2 administrative penalty.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Subsection (l), Section 4, Chapter 1036, Acts of
1-5 the 62nd Legislature, Regular Session, 1971 (Article 8451a,
1-6 Vernon's Texas Civil Statutes), as amended by Chapter 777, Acts of
1-7 the 73rd Legislature, 1993, is redesignated as Subsection (m) and
1-8 amended to read as follows:
1-9 (m) [(l)] The commission by rule shall establish and assess
1-10 fees in amounts reasonable and necessary to cover the cost of
1-11 administering this Act on all persons and entities licensed or
1-12 regulated under this Act [reasonable and necessary fees].
1-13 SECTION 2. Subsection (d), Section 10, Chapter 1036, Acts of
1-14 the 62nd Legislature, Regular Session, 1971 (Article 8451a,
1-15 Vernon's Texas Civil Statutes), is amended to read as follows:
1-16 (d) The applicant is entitled to an operator license if the
1-17 applicant [he] possesses the qualifications enumerated in
1-18 Subsection (b) of this section, satisfactorily completes the
1-19 examination, pays a [$35] license fee established by the
1-20 commission, and has not committed an act that constitutes a ground
1-21 for denial of a license.
1-22 SECTION 3. Subsection (d), Section 11, Chapter 1036, Acts of
1-23 the 62nd Legislature, Regular Session, 1971 (Article 8451a,
2-1 Vernon's Texas Civil Statutes), is amended to read as follows:
2-2 (d) The applicant is entitled to a manicurist license if the
2-3 applicant [he] possesses the qualifications enumerated in
2-4 Subsection (b) of this section, satisfactorily completes the
2-5 examination, pays a [$35] license fee established by the
2-6 commission, and has not committed an act that constitutes a ground
2-7 for denial of a license.
2-8 SECTION 4. Subsection (d), Section 12, Chapter 1036, Acts of
2-9 the 62nd Legislature, Regular Session, 1971 (Article 8451a,
2-10 Vernon's Texas Civil Statutes), is amended to read as follows:
2-11 (d) The applicant is entitled to an instructor license if
2-12 the applicant [he] possesses qualifications enumerated in
2-13 Subsection (b) of this section, satisfactorily completes the
2-14 examination, pays a [$50] license fee established by the
2-15 commission, and has not committed an act that constitutes a ground
2-16 for denial of a license.
2-17 SECTION 5. Subsection (d), Section 13, Chapter 1036, Acts of
2-18 the 62nd Legislature, Regular Session, 1971 (Article 8451a,
2-19 Vernon's Texas Civil Statutes), is amended to read as follows:
2-20 (d) The applicant is entitled to a specialty certificate if
2-21 the applicant [he] possesses the qualifications enumerated in
2-22 Subsection (b) of this section, pays a [$35] certificate fee
2-23 established by the commission, and has not committed an act that
2-24 constitutes a ground for denial of a certificate.
2-25 SECTION 6. Subsection (d), Section 13A, Chapter 1036, Acts
3-1 of the 62nd Legislature, Regular Session, 1971 (Article 8451a,
3-2 Vernon's Texas Civil Statutes), is amended to read as follows:
3-3 (d) The applicant is entitled to a facialist specialty
3-4 license if the applicant possesses the qualifications enumerated in
3-5 Subsection (b) of this section, satisfactorily completes the
3-6 examination, pays a [$35] license fee established by the
3-7 commission, and has not committed an act that constitutes a ground
3-8 for denial of a license.
3-9 SECTION 7. Subsection (b), Section 15, Chapter 1036, Acts of
3-10 the 62nd Legislature, Regular Session, 1971 (Article 8451a,
3-11 Vernon's Texas Civil Statutes), is amended to read as follows:
3-12 (b) A temporary license shall be issued on submission of an
3-13 application form prescribed by the commission and payment of a
3-14 [$45] temporary license fee established by the commission if the
3-15 applicant meets the requirements of Subsection (a) of this section.
3-16 SECTION 8. Subsection (a), Section 16, Chapter 1036, Acts of
3-17 the 62nd Legislature, Regular Session, 1971 (Article 8451a,
3-18 Vernon's Texas Civil Statutes), is amended to read as follows:
3-19 (a) A duplicate license or certificate shall be issued upon
3-20 application on a form prescribed by the commission and on the
3-21 payment of a [$35] fee established by the commission.
3-22 SECTION 9. Subsection (b), Section 17, Chapter 1036, Acts of
3-23 the 62nd Legislature, Regular Session, 1971 (Article 8451a,
3-24 Vernon's Texas Civil Statutes), is amended to read as follows:
3-25 (b) The applicant shall submit an application on a form
4-1 prescribed by the commission and pay a [$100] fee established by
4-2 the commission, plus the applicable license or certification fee.
4-3 SECTION 10. Subsection (b), Section 18, Chapter 1036, Acts
4-4 of the 62nd Legislature, Regular Session, 1971 (Article 8451a,
4-5 Vernon's Texas Civil Statutes), is amended to read as follows:
4-6 (b) A student permit shall be issued on submission of an
4-7 application form prescribed by the commission and payment of a
4-8 [$25] fee established by the commission that [which] must accompany
4-9 the application.
4-10 SECTION 11. Subsections (b) and (c), Section 19, Chapter
4-11 1036, Acts of the 62nd Legislature, Regular Session, 1971 (Article
4-12 8451a, Vernon's Texas Civil Statutes), are amended to read as
4-13 follows:
4-14 (b) An applicant for a beauty shop license must submit an
4-15 application on a form prescribed by the commission. The
4-16 application must contain proof of the particular requisites for a
4-17 beauty shop as established by the commission and must be verified
4-18 by the applicant. With the application, the applicant must submit
4-19 an [a $35] inspection fee established by the commission.
4-20 (c) The applicant is entitled to a beauty shop license if
4-21 the application shows compliance with the rules of the commission
4-22 and the applicant pays[,] a [$45] license fee established by the
4-23 commission [is paid,] and [he] has not committed an act that
4-24 constitutes a ground for denial of a license.
4-25 SECTION 12. Subsections (b) and (c), Section 20, Chapter
5-1 1036, Acts of the 62nd Legislature, Regular Session, 1971 (Article
5-2 8451a, Vernon's Texas Civil Statutes), are amended to read as
5-3 follows:
5-4 (b) An applicant for a specialty shop license must submit an
5-5 application on a form prescribed by the commission. The
5-6 application must contain proof of the particular requisites for a
5-7 specialty shop as established by the commission and must be
5-8 verified by the applicant. With the application, the applicant
5-9 must submit an [a $35] inspection fee established by the
5-10 commission.
5-11 (c) The applicant is entitled to a specialty shop license if
5-12 the application shows compliance with the rules and regulations of
5-13 the commission and the applicant pays[,] a [$45] license fee
5-14 established by the commission [is paid,] and [he] has not committed
5-15 an act that constitutes a ground for denial of a license.
5-16 SECTION 13. Chapter 1036, Acts of the 62nd Legislature,
5-17 Regular Session, 1971 (Article 8451a, Vernon's Texas Civil
5-18 Statutes), is amended by adding Section 20B to read as follows:
5-19 Sec. 20B. NONTRANSFERABILITY OF LICENSE. A license issued
5-20 under this Act is not transferable.
5-21 SECTION 14. Subsection (d), Section 21, Chapter 1036, Acts
5-22 of the 62nd Legislature, Regular Session, 1971 (Article 8451a,
5-23 Vernon's Texas Civil Statutes), is amended to read as follows:
5-24 (d) Each application for a private beauty culture school
5-25 license must be accompanied by payment of a [$500] license fee
6-1 established by the commission and an [a $200] inspection fee
6-2 established by the commission. Each application for certification
6-3 as a public secondary or public postsecondary beauty culture school
6-4 must be accompanied by an [a $200] inspection fee established by
6-5 the commission. The inspection fee is charged for each inspection
6-6 trip required before approval of the license or certificate.
6-7 SECTION 15. Subsection (b), Section 21A, Chapter 1036, Acts
6-8 of the 62nd Legislature, Regular Session, 1971 (Article 8451a,
6-9 Vernon's Texas Civil Statutes), is amended to read as follows:
6-10 (b) The commission shall determine the amount of the fee by
6-11 applying a percentage to each school's annual renewal fee. The
6-12 percentage is the rate determined by the commission that, when
6-13 applied to the total of all renewal fees, will result in the
6-14 collection of $200,000 for deposit in the fund in the first three
6-15 years that the fee is collected. [The fee assessed under this
6-16 section may not exceed $200 per year.]
6-17 SECTION 16. Subsections (e), (f), (g), and (i), Section 33,
6-18 Chapter 1036, Acts of the 62nd Legislature, Regular Session, 1971
6-19 (Article 8451a, Vernon's Texas Civil Statutes), are amended to read
6-20 as follows:
6-21 (e) A license that has been expired for less than 30 days
6-22 may be renewed. A renewal license shall be issued on submission of
6-23 a completed application form prescribed by the commission and
6-24 payment of the renewal fee, plus a [$10] delinquency fee
6-25 established by the commission.
7-1 (f) Except as provided by Subsection (h) of this section, a
7-2 license that has been expired for more than 30 days but less than
7-3 five years may be renewed. A renewal license shall be issued on
7-4 submission of an application, payment of the fee established by
7-5 this Act for each year the license has been expired, and payment of
7-6 a delinquency fee established by the commission. [Delinquency fees
7-7 under this subsection are:]
7-8 [(1) operator or specialty license $25;]
7-9 [(2) instructor license $50;]
7-10 [(3) manicurist license $25; and]
7-11 [(4) beauty or specialty salon license $35.]
7-12 (g) An applicant for renewal of a license that has been
7-13 expired for more than five years shall be issued a license on
7-14 submission of an application, payment of the examination fee,
7-15 satisfactory completion of the examination, and payment of a [$50]
7-16 reinstatement fee established by the commission.
7-17 (i) An applicant for renewal of a license must have a high
7-18 school diploma or an equivalent of a high school diploma or have
7-19 passed an Ability to Benefit from Training examination [The
7-20 commission by rule shall establish the delinquency fee for a booth
7-21 rental license].
7-22 SECTION 17. The heading to Section 40, Chapter 1036, Acts of
7-23 the 62nd Legislature, Regular Session, 1971 (Article 8451a,
7-24 Vernon's Texas Civil Statutes), is amended to read as follows:
7-25 Sec. 40. CRIMINAL PENALTIES.
8-1 SECTION 18. Chapter 1036, Acts of the 62nd Legislature,
8-2 Regular Session, 1971 (Article 8451a, Vernon's Texas Civil
8-3 Statutes), is amended by adding Section 40A to read as follows:
8-4 Sec. 40A. ADMINISTRATIVE PENALTY. (a) The commission may
8-5 impose an administrative penalty against a person licensed or
8-6 regulated under this Act who violates this Act or a rule or order
8-7 adopted under this Act.
8-8 (b) The penalty for a violation may be in an amount not to
8-9 exceed $1,000. Each day a violation continues or occurs is a
8-10 separate violation for purposes of imposing a penalty.
8-11 (c) The amount of the penalty shall be based on:
8-12 (1) the seriousness of the violation, including the
8-13 nature, circumstances, extent, and gravity of any prohibited acts,
8-14 and the hazard or potential hazard created to the health, safety,
8-15 or economic welfare of the public;
8-16 (2) the economic harm to property or the environment
8-17 caused by the violation;
8-18 (3) the history of previous violations;
8-19 (4) the amount necessary to deter future violations;
8-20 (5) efforts to correct the violation; and
8-21 (6) any other matter that justice may require.
8-22 (d) The executive director, on a determination that a
8-23 violation has occurred, may issue to the commission a report that
8-24 states the facts on which the determination is based and the
8-25 director's recommendation on the imposition of a penalty, including
9-1 a recommendation on the amount of the penalty.
9-2 (e) Within 14 days after the date the report is issued, the
9-3 executive director shall give written notice of the report to the
9-4 person. The notice may be given by certified mail. The notice
9-5 must include a brief summary of the alleged violation and a
9-6 statement of the amount of the recommended penalty and must inform
9-7 the person that the person has a right to a hearing on the
9-8 occurrence of the violation, the amount of the penalty, or both the
9-9 occurrence of the violation and the amount of the penalty.
9-10 (f) Within 20 days after the date the person receives the
9-11 notice, the person in writing may accept the determination and
9-12 recommended penalty of the executive director or may make a written
9-13 request for a hearing on the occurrence of the violation, the
9-14 amount of the penalty, or both the occurrence of the violation and
9-15 the amount of the penalty.
9-16 (g) If the person accepts the determination and recommended
9-17 penalty of the executive director, the commission by order shall
9-18 approve the determination and impose the recommended penalty.
9-19 (h) If the person requests a hearing or fails to respond
9-20 timely to the notice, the executive director shall set a hearing
9-21 and give notice of the hearing to the person. The hearing shall be
9-22 held by an administrative law judge of the State Office of
9-23 Administrative Hearings. The administrative law judge shall make
9-24 findings of fact and conclusions of law and promptly issue to the
9-25 commission a proposal for a decision about the occurrence of the
10-1 violation and the amount of a proposed penalty. Based on the
10-2 findings of fact, conclusions of law, and proposal for a decision,
10-3 the commission by order may find that a violation has occurred and
10-4 impose a penalty or may find that no violation occurred.
10-5 (i) The notice of the commission's order given to the person
10-6 under Chapter 2001, Government Code, must include a statement of
10-7 the right of the person to judicial review of the order.
10-8 (j) Within 30 days after the date the commission's order
10-9 becomes final as provided by Section 2001.144, Government Code, the
10-10 person shall:
10-11 (1) pay the amount of the penalty;
10-12 (2) pay the amount of the penalty and file a petition
10-13 for judicial review contesting the occurrence of the violation, the
10-14 amount of the penalty, or both the occurrence of the violation and
10-15 the amount of the penalty; or
10-16 (3) without paying the amount of the penalty, file a
10-17 petition for judicial review contesting the occurrence of the
10-18 violation, the amount of the penalty, or both the occurrence of the
10-19 violation and the amount of the penalty.
10-20 (k) Within 30 days after the date the commission's order
10-21 becomes final, a person who acts under Subsection (j)(3) of this
10-22 section may:
10-23 (1) stay enforcement of the penalty by:
10-24 (A) paying the amount of the penalty to the
10-25 court for placement in an escrow account; or
11-1 (B) giving to the court a supersedeas bond that
11-2 is approved by the court for the amount of the penalty and that is
11-3 effective until all judicial review of the commission's order is
11-4 final; or
11-5 (2) request the court to stay enforcement of the
11-6 penalty by:
11-7 (A) filing with the court a sworn affidavit of
11-8 the person stating that the person is financially unable to pay the
11-9 amount of the penalty and is financially unable to give the
11-10 supersedeas bond; and
11-11 (B) giving a copy of the affidavit to the
11-12 executive director by certified mail.
11-13 (l) On receipt of a copy of an affidavit under Subsection
11-14 (k)(2) of this section, the executive director may file with the
11-15 court, within five days after the date the copy is received, a
11-16 contest to the affidavit. The court shall hold a hearing on the
11-17 facts alleged in the affidavit as soon as practicable and shall
11-18 stay the enforcement of the penalty on finding that the alleged
11-19 facts are true. The person who files an affidavit has the burden
11-20 of proving that the person is financially unable to pay the amount
11-21 of the penalty and to give a supersedeas bond.
11-22 (m) If the person does not pay the amount of the penalty and
11-23 the enforcement of the penalty is not stayed, the executive
11-24 director may refer the matter to the attorney general for
11-25 collection of the amount of the penalty.
12-1 (n) Judicial review of the order of the commission:
12-2 (1) is instituted by filing a petition as provided by
12-3 Subchapter G, Chapter 2001, Government Code; and
12-4 (2) is under the substantial evidence rule.
12-5 (o) If the court sustains the occurrence of the violation,
12-6 the court may uphold or reduce the amount of the penalty and order
12-7 the person to pay the full or reduced amount of the penalty. If
12-8 the court does not sustain the occurrence of the violation, the
12-9 court shall order that no penalty is owed.
12-10 (p) When the judgment of the court becomes final, the court
12-11 shall proceed under this subsection. If the person paid the amount
12-12 of the penalty and if that amount is reduced or is not upheld by
12-13 the court, the court shall order that the appropriate amount plus
12-14 accrued interest be remitted to the person. The rate of the
12-15 interest is the rate charged on loans to depository institutions by
12-16 the New York Federal Reserve Bank, and the interest shall be paid
12-17 for the period beginning on the date the penalty was paid and
12-18 ending on the date the penalty is remitted. If the person gave a
12-19 supersedeas bond and if the amount of the penalty is not upheld by
12-20 the court, the court shall order the release of the bond. If the
12-21 person gave a supersedeas bond and if the amount of the penalty is
12-22 reduced, the court shall order the release of the bond after the
12-23 person pays the amount.
12-24 (q) A penalty collected under this section shall be remitted
12-25 to the comptroller for deposit in the general revenue fund.
13-1 (r) All proceedings under this section are subject to
13-2 Chapter 2001, Government Code.
13-3 SECTION 19. Section 34, Chapter 1036, Acts of the 62nd
13-4 Legislature, Regular Session, 1971 (Article 8451a, Vernon's Texas
13-5 Civil Statutes), is repealed.
13-6 SECTION 20. (a) This Act takes effect September 1, 1997.
13-7 (b) Section 40A, Chapter 1036, Acts of the 62nd Legislature,
13-8 Regular Session, 1971 (Article 8451a, Vernon's Texas Civil
13-9 Statutes), as added by this Act, applies only to a violation of or
13-10 a rule adopted under that Act that occurs on or after the effective
13-11 date of this Act. Section 20B, Chapter 1036, Acts of the 62nd
13-12 Legislature, Regular Session, 1971 (Article 8451a, Vernon's Texas
13-13 Civil Statutes), as added by this Act, applies only to the transfer
13-14 of licenses on or after the effective date of this Act. The
13-15 changes in law made by Sections 1 through 16 of this Act apply only
13-16 to inspections made or licenses issued or renewed on or after the
13-17 effective date of this Act. Inspections made or licenses issued or
13-18 renewed before the effective date of this Act are governed by the
13-19 law in effect on the date of inspection, issuance, or renewal, and
13-20 the former law is continued in effect for that purpose.
13-21 SECTION 21. The importance of this legislation and the
13-22 crowded condition of the calendars in both houses create an
13-23 emergency and an imperative public necessity that the
13-24 constitutional rule requiring bills to be read on three several
13-25 days in each house be suspended, and this rule is hereby suspended.