By Ellis S.B. No. 1131
75R4583 GJH-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the regulation of cosmetologists; providing an
1-3 administrative penalty.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 10(d), Chapter 1036, Acts of the 62nd
1-6 Legislature, Regular Session, 1971 (Article 8451a, Vernon's Texas
1-7 Civil Statutes), is amended to read as follows:
1-8 (d) The applicant is entitled to an operator license if the
1-9 applicant [he] possesses the qualifications enumerated in
1-10 Subsection (b) of this section, satisfactorily completes the
1-11 examination, pays a $70 [$35] license fee, and has not committed an
1-12 act that constitutes a ground for denial of a license.
1-13 SECTION 2. Section 11(d), Chapter 1036, Acts of the 62nd
1-14 Legislature, Regular Session, 1971 (Article 8451a, Vernon's Texas
1-15 Civil Statutes), is amended to read as follows:
1-16 (d) The applicant is entitled to a manicurist 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 $70 [$35] license fee, and has not committed an
1-20 act that constitutes a ground for denial of a license.
1-21 SECTION 3. Section 12(d), Chapter 1036, Acts of the 62nd
1-22 Legislature, Regular Session, 1971 (Article 8451a, Vernon's Texas
1-23 Civil Statutes), is amended to read as follows:
1-24 (d) The applicant is entitled to an instructor license if
2-1 the applicant [he] possesses qualifications enumerated in
2-2 Subsection (b) of this section, satisfactorily completes the
2-3 examination, pays a $100 [$50] license fee, and has not committed
2-4 an act that constitutes a ground for denial of a license.
2-5 SECTION 4. Section 13(d), Chapter 1036, Acts of the 62nd
2-6 Legislature, Regular Session, 1971 (Article 8451a, Vernon's Texas
2-7 Civil Statutes), is amended to read as follows:
2-8 (d) The applicant is entitled to a specialty certificate if
2-9 the applicant [he] possesses the qualifications enumerated in
2-10 Subsection (b) of this section, pays a $70 [$35] certificate fee,
2-11 and has not committed an act that constitutes a ground for denial
2-12 of a certificate.
2-13 SECTION 5. Section 13A(d), Chapter 1036, Acts of the 62nd
2-14 Legislature, Regular Session, 1971 (Article 8451a, Vernon's Texas
2-15 Civil Statutes), is amended to read as follows:
2-16 (d) The applicant is entitled to a facialist specialty
2-17 license if the applicant possesses the qualifications enumerated in
2-18 Subsection (b) of this section, satisfactorily completes the
2-19 examination, pays a $70 [$35] license fee, and has not committed an
2-20 act that constitutes a ground for denial of a license.
2-21 SECTION 6. Section 19(c), Chapter 1036, Acts of the 62nd
2-22 Legislature, Regular Session, 1971 (Article 8451a, Vernon's Texas
2-23 Civil Statutes), is amended to read as follows:
2-24 (c) The applicant is entitled to a beauty shop license if
2-25 the application shows compliance with the rules of the commission
2-26 and the applicant pays [,] a $90 [$45] license fee [is paid,] and
2-27 [he] has not committed an act that constitutes a ground for denial
3-1 of a license.
3-2 SECTION 7. Section 20(c), Chapter 1036, Acts of the 62nd
3-3 Legislature, Regular Session, 1971 (Article 8451a, Vernon's Texas
3-4 Civil Statutes), is amended to read as follows:
3-5 (c) The applicant is entitled to a specialty shop license if
3-6 the application shows compliance with the rules and regulations of
3-7 the commission and the applicant pays[,] a $90 [$45] license fee
3-8 [is paid,] and [he] has not committed an act that constitutes a
3-9 ground for denial of a license.
3-10 SECTION 8. Chapter 1036, Acts of the 62nd Legislature,
3-11 Regular Session, 1971 (Article 8451a, Vernon's Texas Civil
3-12 Statutes), is amended by adding Section 20B to read as follows:
3-13 Sec. 20B. NONTRANSFERABILITY OF LICENSE. A license issued
3-14 under this Act is not transferable.
3-15 SECTION 9. Section 34(a), Chapter 1036, Acts of the 62nd
3-16 Legislature, Regular Session, 1971 (Article 8451a, Vernon's Texas
3-17 Civil Statutes), is amended to read as follows:
3-18 (a) Renewal fees under this Act are:
3-19 (1) Operator or specialty license $70 [$35];
3-20 (2) Instructor license $100 [$50];
3-21 (3) Manicurist license $70 [$35];
3-22 (4) Private beauty school license $200 per year;
3-23 and
3-24 (5) Beauty or specialty shop license $90 [$45].
3-25 SECTION 10. The heading to Section 40, Chapter 1036, Acts of
3-26 the 62nd Legislature, Regular Session, 1971 (Article 8451a,
3-27 Vernon's Texas Civil Statutes), is amended to read as follows:
4-1 Sec. 40. CRIMINAL PENALTIES.
4-2 SECTION 11. Chapter 1036, Acts of the 62nd Legislature,
4-3 Regular Session, 1971 (Article 8451a, Vernon's Texas Civil
4-4 Statutes), is amended by adding Section 40A to read as follows:
4-5 Sec. 40A. ADMINISTRATIVE PENALTY. (a) The commission may
4-6 impose an administrative penalty against a person licensed or
4-7 regulated under this Act who violates this Act or a rule or order
4-8 adopted under this Act.
4-9 (b) The penalty for a violation may be in an amount not to
4-10 exceed $1,000. Each day a violation continues or occurs is a
4-11 separate violation for purposes of imposing a penalty.
4-12 (c) The amount of the penalty shall be based on:
4-13 (1) the seriousness of the violation, including the
4-14 nature, circumstances, extent, and gravity of any prohibited acts,
4-15 and the hazard or potential hazard created to the health, safety,
4-16 or economic welfare of the public;
4-17 (2) the economic harm to property or the environment
4-18 caused by the violation;
4-19 (3) the history of previous violations;
4-20 (4) the amount necessary to deter future violations;
4-21 (5) efforts to correct the violation; and
4-22 (6) any other matter that justice may require.
4-23 (d) The executive director, on a determination that a
4-24 violation has occurred, may issue to the commission a report that
4-25 states the facts on which the determination is based and the
4-26 director's recommendation on the imposition of a penalty, including
4-27 a recommendation on the amount of the penalty.
5-1 (e) Within 14 days after the date the report is issued, the
5-2 executive director shall give written notice of the report to the
5-3 person. The notice may be given by certified mail. The notice
5-4 must include a brief summary of the alleged violation and a
5-5 statement of the amount of the recommended penalty and must inform
5-6 the person that the person has a right to a hearing on the
5-7 occurrence of the violation, the amount of the penalty, or both the
5-8 occurrence of the violation and the amount of the penalty.
5-9 (f) Within 20 days after the date the person receives the
5-10 notice, the person in writing may accept the determination and
5-11 recommended penalty of the executive director or may make a written
5-12 request for a hearing on the occurrence of the violation, the
5-13 amount of the penalty, or both the occurrence of the violation and
5-14 the amount of the penalty.
5-15 (g) If the person accepts the determination and recommended
5-16 penalty of the executive director, the commission by order shall
5-17 approve the determination and impose the recommended penalty.
5-18 (h) If the person requests a hearing or fails to respond
5-19 timely to the notice, the executive director shall set a hearing
5-20 and give notice of the hearing to the person. The hearing shall be
5-21 held by an administrative law judge of the State Office of
5-22 Administrative Hearings. The administrative law judge shall make
5-23 findings of fact and conclusions of law and promptly issue to the
5-24 commission a proposal for a decision about the occurrence of the
5-25 violation and the amount of a proposed penalty. Based on the
5-26 findings of fact, conclusions of law, and proposal for a decision,
5-27 the commission by order may find that a violation has occurred and
6-1 impose a penalty or may find that no violation occurred.
6-2 (i) The notice of the commission's order given to the person
6-3 under Chapter 2001, Government Code, must include a statement of
6-4 the right of the person to judicial review of the order.
6-5 (j) Within 30 days after the date the commission's order
6-6 becomes final as provided by Section 2001.144, Government Code, the
6-7 person shall:
6-8 (1) pay the amount of the penalty;
6-9 (2) pay the amount of the penalty and file a petition
6-10 for judicial review contesting the occurrence of the violation, the
6-11 amount of the penalty, or both the occurrence of the violation and
6-12 the amount of the penalty; or
6-13 (3) without paying the amount of the penalty, file a
6-14 petition for judicial review contesting the occurrence of the
6-15 violation, the amount of the penalty, or both the occurrence of the
6-16 violation and the amount of the penalty.
6-17 (k) Within the 30-day period, a person who acts under
6-18 Subsection (j)(3) of this section may:
6-19 (1) stay enforcement of the penalty by:
6-20 (A) paying the amount of the penalty to the
6-21 court for placement in an escrow account; or
6-22 (B) giving to the court a supersedeas bond that
6-23 is approved by the court for the amount of the penalty and that is
6-24 effective until all judicial review of the commission's order is
6-25 final; or
6-26 (2) request the court to stay enforcement of the
6-27 penalty by:
7-1 (A) filing with the court a sworn affidavit of
7-2 the person stating that the person is financially unable to pay the
7-3 amount of the penalty and is financially unable to give the
7-4 supersedeas bond; and
7-5 (B) giving a copy of the affidavit to the
7-6 executive director by certified mail.
7-7 (l) On receipt of a copy of an affidavit under Subsection
7-8 (k)(2) of this section, the executive director may file with the
7-9 court, within five days after the date the copy is received, a
7-10 contest to the affidavit. The court shall hold a hearing on the
7-11 facts alleged in the affidavit as soon as practicable and shall
7-12 stay the enforcement of the penalty on finding that the alleged
7-13 facts are true. The person who files an affidavit has the burden
7-14 of proving that the person is financially unable to pay the amount
7-15 of the penalty and to give a supersedeas bond.
7-16 (m) If the person does not pay the amount of the penalty and
7-17 the enforcement of the penalty is not stayed, the executive
7-18 director may refer the matter to the attorney general for
7-19 collection of the amount of the penalty.
7-20 (n) Judicial review of the order of the commission:
7-21 (1) is instituted by filing a petition as provided by
7-22 Subchapter G, Chapter 2001, Government Code; and
7-23 (2) is under the substantial evidence rule.
7-24 (o) If the court sustains the occurrence of the violation,
7-25 the court may uphold or reduce the amount of the penalty and order
7-26 the person to pay the full or reduced amount of the penalty. If
7-27 the court does not sustain the occurrence of the violation, the
8-1 court shall order that no penalty is owed.
8-2 (p) When the judgment of the court becomes final, the court
8-3 shall proceed under this subsection. If the person paid the amount
8-4 of the penalty and if that amount is reduced or is not upheld by
8-5 the court, the court shall order that the appropriate amount plus
8-6 accrued interest be remitted to the person. The rate of the
8-7 interest is the rate charged on loans to depository institutions by
8-8 the New York Federal Reserve Bank, and the interest shall be paid
8-9 for the period beginning on the date the penalty was paid and
8-10 ending on the date the penalty is remitted. If the person gave a
8-11 supersedeas bond and if the amount of the penalty is not upheld by
8-12 the court, the court shall order the release of the bond. If the
8-13 person gave a supersedeas bond and if the amount of the penalty is
8-14 reduced, the court shall order the release of the bond after the
8-15 person pays the amount.
8-16 (q) A penalty collected under this section shall be remitted
8-17 to the comptroller for deposit in the general revenue fund.
8-18 (r) All proceedings under this section are subject to
8-19 Chapter 2001, Government Code.
8-20 SECTION 12. (a) This Act takes effect September 1, 1997.
8-21 (b) Section 40A, Chapter 1036, Acts of the 62nd Legislature,
8-22 Regular Session, 1971 (Article 8451a, Vernon's Texas Civil
8-23 Statutes), as added by this Act, applies only to a violation of
8-24 that chapter or a rule adopted under that chapter that occurs on or
8-25 after the effective date of this Act. Section 20B of that chapter,
8-26 as added by this Act, applies only to the transfer of licenses on
8-27 or after that date. The changes in law made by Sections 1-9 of
9-1 this Act apply only to licenses issued or renewed on or after that
9-2 date. Licenses issued or renewed before that date are governed by
9-3 the law in effect on the date of issuance or renewal, and the
9-4 former law is continued in effect for that purpose.
9-5 SECTION 13. The importance of this legislation and the
9-6 crowded condition of the calendars in both houses create an
9-7 emergency and an imperative public necessity that the
9-8 constitutional rule requiring bills to be read on three several
9-9 days in each house be suspended, and this rule is hereby suspended.