1-1 By: Ellis, Nelson S.B. No. 1131
1-2 (In the Senate - Filed March 11, 1997; March 13, 1997, read
1-3 first time and referred to Committee on State Affairs;
1-4 April 2, 1997, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 9, Nays 1; April 2, 1997,
1-6 sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR S.B. No. 1131 By: Ellis
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to the regulation of cosmetologists; providing an
1-11 administrative penalty.
1-12 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-13 SECTION 1. Subsection (f), Section 4, 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 (f) The commission shall [may] recognize, prepare, or
1-17 administer continuing education programs for persons holding an
1-18 instructor license under Section 12 of this Act [the practice of
1-19 cosmetology]. Participation in a continuing education program [the
1-20 programs] is mandatory [voluntary].
1-21 SECTION 2. Subsection (l), Section 4, Chapter 1036, Acts of
1-22 the 62nd Legislature, Regular Session, 1971 (Article 8451a,
1-23 Vernon's Texas Civil Statutes), as amended by Chapter 777, Acts of
1-24 the 73rd Legislature, 1993, is redesignated as Subsection (m) and
1-25 amended to read as follows:
1-26 (m) [(l)] The commission by rule shall establish and assess
1-27 fees in amounts reasonable and necessary to cover the cost of
1-28 administering this Act on all persons and entities licensed or
1-29 regulated under this Act [reasonable and necessary fees].
1-30 SECTION 3. Subsection (d), Section 10, Chapter 1036, Acts of
1-31 the 62nd Legislature, Regular Session, 1971 (Article 8451a,
1-32 Vernon's Texas Civil Statutes), is amended to read as follows:
1-33 (d) The applicant is entitled to an operator license if the
1-34 applicant [he] possesses the qualifications enumerated in
1-35 Subsection (b) of this section, satisfactorily completes the
1-36 examination, pays a [$35] license fee established by the
1-37 commission, and has not committed an act that constitutes a ground
1-38 for denial of a license.
1-39 SECTION 4. Subsection (d), Section 11, Chapter 1036, Acts of
1-40 the 62nd Legislature, Regular Session, 1971 (Article 8451a,
1-41 Vernon's Texas Civil Statutes), is amended to read as follows:
1-42 (d) The applicant is entitled to a manicurist license if the
1-43 applicant [he] possesses the qualifications enumerated in
1-44 Subsection (b) of this section, satisfactorily completes the
1-45 examination, pays a [$35] license fee established by the
1-46 commission, and has not committed an act that constitutes a ground
1-47 for denial of a license.
1-48 SECTION 5. Subsection (d), Section 12, Chapter 1036, Acts of
1-49 the 62nd Legislature, Regular Session, 1971 (Article 8451a,
1-50 Vernon's Texas Civil Statutes), is amended to read as follows:
1-51 (d) The applicant is entitled to an instructor license if
1-52 the applicant [he] possesses qualifications enumerated in
1-53 Subsection (b) of this section, satisfactorily completes the
1-54 examination, pays a [$50] license fee established by the
1-55 commission, and has not committed an act that constitutes a ground
1-56 for denial of a license.
1-57 SECTION 6. Subsection (d), Section 13, Chapter 1036, Acts of
1-58 the 62nd Legislature, Regular Session, 1971 (Article 8451a,
1-59 Vernon's Texas Civil Statutes), is amended to read as follows:
1-60 (d) The applicant is entitled to a specialty certificate if
1-61 the applicant [he] possesses the qualifications enumerated in
1-62 Subsection (b) of this section, pays a [$35] certificate fee
1-63 established by the commission, and has not committed an act that
1-64 constitutes a ground for denial of a certificate.
2-1 SECTION 7. Subsection (d), Section 13A, Chapter 1036, Acts
2-2 of the 62nd Legislature, Regular Session, 1971 (Article 8451a,
2-3 Vernon's Texas Civil Statutes), is amended to read as follows:
2-4 (d) The applicant is entitled to a facialist specialty
2-5 license if the applicant possesses the qualifications enumerated in
2-6 Subsection (b) of this section, satisfactorily completes the
2-7 examination, pays a [$35] license fee established by the
2-8 commission, and has not committed an act that constitutes a ground
2-9 for denial of a license.
2-10 SECTION 8. Subsection (b), Section 15, Chapter 1036, Acts of
2-11 the 62nd Legislature, Regular Session, 1971 (Article 8451a,
2-12 Vernon's Texas Civil Statutes), is amended to read as follows:
2-13 (b) A temporary license shall be issued on submission of an
2-14 application form prescribed by the commission and payment of a
2-15 [$45] temporary license fee established by the commission if the
2-16 applicant meets the requirements of Subsection (a) of this section.
2-17 SECTION 9. Subsection (a), Section 16, 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 (a) A duplicate license or certificate shall be issued upon
2-21 application on a form prescribed by the commission and on the
2-22 payment of a [$35] fee established by the commission.
2-23 SECTION 10. Subsection (b), Section 17, Chapter 1036, Acts
2-24 of the 62nd Legislature, Regular Session, 1971 (Article 8451a,
2-25 Vernon's Texas Civil Statutes), is amended to read as follows:
2-26 (b) The applicant shall submit an application on a form
2-27 prescribed by the commission and pay a [$100] fee established by
2-28 the commission, plus the applicable license or certification fee.
2-29 SECTION 11. Subsection (b), Section 18, Chapter 1036, Acts
2-30 of the 62nd Legislature, Regular Session, 1971 (Article 8451a,
2-31 Vernon's Texas Civil Statutes), is amended to read as follows:
2-32 (b) A student permit shall be issued on submission of an
2-33 application form prescribed by the commission and payment of a
2-34 [$25] fee established by the commission that [which] must accompany
2-35 the application.
2-36 SECTION 12. Subsections (b) and (c), Section 19, Chapter
2-37 1036, Acts of the 62nd Legislature, Regular Session, 1971 (Article
2-38 8451a, Vernon's Texas Civil Statutes), are amended to read as
2-39 follows:
2-40 (b) An applicant for a beauty shop license must submit an
2-41 application on a form prescribed by the commission. The
2-42 application must contain proof of the particular requisites for a
2-43 beauty shop as established by the commission and must be verified
2-44 by the applicant. With the application, the applicant must submit
2-45 an [a $35] inspection fee established by the commission.
2-46 (c) The applicant is entitled to a beauty shop license if
2-47 the application shows compliance with the rules of the commission
2-48 and the applicant pays [,] a [$45] license fee established by the
2-49 commission [is paid,] and [he] has not committed an act that
2-50 constitutes a ground for denial of a license.
2-51 SECTION 13. Subsections (b) and (c), Section 20, Chapter
2-52 1036, Acts of the 62nd Legislature, Regular Session, 1971 (Article
2-53 8451a, Vernon's Texas Civil Statutes), are amended to read as
2-54 follows:
2-55 (b) An applicant for a specialty shop license must submit an
2-56 application on a form prescribed by the commission. The
2-57 application must contain proof of the particular requisites for a
2-58 specialty shop as established by the commission and must be
2-59 verified by the applicant. With the application, the applicant
2-60 must submit an [a $35] inspection fee established by the
2-61 commission.
2-62 (c) The applicant is entitled to a specialty shop license if
2-63 the application shows compliance with the rules and regulations of
2-64 the commission and the applicant pays[,] a [$45] license fee
2-65 established by the commission [is paid,] and [he] has not committed
2-66 an act that constitutes a ground for denial of a license.
2-67 SECTION 14. Chapter 1036, Acts of the 62nd Legislature,
2-68 Regular Session, 1971 (Article 8451a, Vernon's Texas Civil
2-69 Statutes), is amended by adding Section 20B to read as follows:
3-1 Sec. 20B. NONTRANSFERABILITY OF LICENSE. A license issued
3-2 under this Act is not transferable.
3-3 SECTION 15. Subsection (d), Section 21, Chapter 1036, Acts
3-4 of the 62nd Legislature, Regular Session, 1971 (Article 8451a,
3-5 Vernon's Texas Civil Statutes), is amended to read as follows:
3-6 (d) Each application for a private beauty culture school
3-7 license must be accompanied by payment of a [$500] license fee
3-8 established by the commission and an [a $200] inspection fee
3-9 established by the commission. Each application for certification
3-10 as a public secondary or public postsecondary beauty culture school
3-11 must be accompanied by an [a $200] inspection fee established by
3-12 the commission. The inspection fee is charged for each inspection
3-13 trip required before approval of the license or certificate.
3-14 SECTION 16. Subsection (b), Section 21A, Chapter 1036, Acts
3-15 of the 62nd Legislature, Regular Session, 1971 (Article 8451a,
3-16 Vernon's Texas Civil Statutes), is amended to read as follows:
3-17 (b) The commission shall determine the amount of the fee by
3-18 applying a percentage to each school's annual renewal fee. The
3-19 percentage is the rate determined by the commission that, when
3-20 applied to the total of all renewal fees, will result in the
3-21 collection of $200,000 for deposit in the fund in the first three
3-22 years that the fee is collected. [The fee assessed under this
3-23 section may not exceed $200 per year.]
3-24 SECTION 17. Subsections (e), (f), (g), and (i), Section 33,
3-25 Chapter 1036, Acts of the 62nd Legislature, Regular Session, 1971
3-26 (Article 8451a, Vernon's Texas Civil Statutes), are amended to read
3-27 as follows:
3-28 (e) A license that has been expired for less than 30 days
3-29 may be renewed. A renewal license shall be issued on submission of
3-30 a completed application form prescribed by the commission and
3-31 payment of the renewal fee, plus a [$10] delinquency fee
3-32 established by the commission.
3-33 (f) Except as provided by Subsection (h) of this section, a
3-34 license that has been expired for more than 30 days but less than
3-35 five years may be renewed. A renewal license shall be issued on
3-36 submission of an application, payment of the fee established by
3-37 this Act for each year the license has been expired, and payment of
3-38 a delinquency fee established by the commission. [Delinquency fees
3-39 under this subsection are:]
3-40 [(1) operator or specialty license $25;]
3-41 [(2) instructor license $50;]
3-42 [(3) manicurist license $25; and]
3-43 [(4) beauty or specialty salon license $35.]
3-44 (g) An applicant for renewal of a license that has been
3-45 expired for more than five years shall be issued a license on
3-46 submission of an application, payment of the examination fee,
3-47 satisfactory completion of the examination, and payment of a [$50]
3-48 reinstatement fee established by the commission.
3-49 (i) An applicant for renewal of a license must have a high
3-50 school diploma or an equivalent of a high school diploma [The
3-51 commission by rule shall establish the delinquency fee for a booth
3-52 rental license].
3-53 SECTION 18. The heading to Section 40, Chapter 1036, Acts of
3-54 the 62nd Legislature, Regular Session, 1971 (Article 8451a,
3-55 Vernon's Texas Civil Statutes), is amended to read as follows:
3-56 Sec. 40. CRIMINAL PENALTIES.
3-57 SECTION 19. Chapter 1036, Acts of the 62nd Legislature,
3-58 Regular Session, 1971 (Article 8451a, Vernon's Texas Civil
3-59 Statutes), is amended by adding Section 40A to read as follows:
3-60 Sec. 40A. ADMINISTRATIVE PENALTY. (a) The commission may
3-61 impose an administrative penalty against a person licensed or
3-62 regulated under this Act who violates this Act or a rule or order
3-63 adopted under this Act.
3-64 (b) The penalty for a violation may be in an amount not to
3-65 exceed $1,000. Each day a violation continues or occurs is a
3-66 separate violation for purposes of imposing a penalty.
3-67 (c) The amount of the penalty shall be based on:
3-68 (1) the seriousness of the violation, including the
3-69 nature, circumstances, extent, and gravity of any prohibited acts,
4-1 and the hazard or potential hazard created to the health, safety,
4-2 or economic welfare of the public;
4-3 (2) the economic harm to property or the environment
4-4 caused by the violation;
4-5 (3) the history of previous violations;
4-6 (4) the amount necessary to deter future violations;
4-7 (5) efforts to correct the violation; and
4-8 (6) any other matter that justice may require.
4-9 (d) The executive director, on a determination that a
4-10 violation has occurred, may issue to the commission a report that
4-11 states the facts on which the determination is based and the
4-12 director's recommendation on the imposition of a penalty, including
4-13 a recommendation on the amount of the penalty.
4-14 (e) Within 14 days after the date the report is issued, the
4-15 executive director shall give written notice of the report to the
4-16 person. The notice may be given by certified mail. The notice
4-17 must include a brief summary of the alleged violation and a
4-18 statement of the amount of the recommended penalty and must inform
4-19 the person that the person has a right to a hearing on the
4-20 occurrence of the violation, the amount of the penalty, or both the
4-21 occurrence of the violation and the amount of the penalty.
4-22 (f) Within 20 days after the date the person receives the
4-23 notice, the person in writing may accept the determination and
4-24 recommended penalty of the executive director or may make a written
4-25 request for a hearing on the occurrence of the violation, the
4-26 amount of the penalty, or both the occurrence of the violation and
4-27 the amount of the penalty.
4-28 (g) If the person accepts the determination and recommended
4-29 penalty of the executive director, the commission by order shall
4-30 approve the determination and impose the recommended penalty.
4-31 (h) If the person requests a hearing or fails to respond
4-32 timely to the notice, the executive director shall set a hearing
4-33 and give notice of the hearing to the person. The hearing shall be
4-34 held by an administrative law judge of the State Office of
4-35 Administrative Hearings. The administrative law judge shall make
4-36 findings of fact and conclusions of law and promptly issue to the
4-37 commission a proposal for a decision about the occurrence of the
4-38 violation and the amount of a proposed penalty. Based on the
4-39 findings of fact, conclusions of law, and proposal for a decision,
4-40 the commission by order may find that a violation has occurred and
4-41 impose a penalty or may find that no violation occurred.
4-42 (i) The notice of the commission's order given to the person
4-43 under Chapter 2001, Government Code, must include a statement of
4-44 the right of the person to judicial review of the order.
4-45 (j) Within 30 days after the date the commission's order
4-46 becomes final as provided by Section 2001.144, Government Code, the
4-47 person shall:
4-48 (1) pay the amount of the penalty;
4-49 (2) pay the amount of the penalty and file a petition
4-50 for judicial review contesting the occurrence of the violation, the
4-51 amount of the penalty, or both the occurrence of the violation and
4-52 the amount of the penalty; or
4-53 (3) without paying the amount of the penalty, file a
4-54 petition for judicial review contesting the occurrence of the
4-55 violation, the amount of the penalty, or both the occurrence of the
4-56 violation and the amount of the penalty.
4-57 (k) Within 30 days after the date the commission's order
4-58 becomes final, a person who acts under Subsection (j)(3) of this
4-59 section may:
4-60 (1) stay enforcement of the penalty by:
4-61 (A) paying the amount of the penalty to the
4-62 court for placement in an escrow account; or
4-63 (B) giving to the court a supersedeas bond that
4-64 is approved by the court for the amount of the penalty and that is
4-65 effective until all judicial review of the commission's order is
4-66 final; or
4-67 (2) request the court to stay enforcement of the
4-68 penalty by:
4-69 (A) filing with the court a sworn affidavit of
5-1 the person stating that the person is financially unable to pay the
5-2 amount of the penalty and is financially unable to give the
5-3 supersedeas bond; and
5-4 (B) giving a copy of the affidavit to the
5-5 executive director by certified mail.
5-6 (l) On receipt of a copy of an affidavit under Subsection
5-7 (k)(2) of this section, the executive director may file with the
5-8 court, within five days after the date the copy is received, a
5-9 contest to the affidavit. The court shall hold a hearing on the
5-10 facts alleged in the affidavit as soon as practicable and shall
5-11 stay the enforcement of the penalty on finding that the alleged
5-12 facts are true. The person who files an affidavit has the burden
5-13 of proving that the person is financially unable to pay the amount
5-14 of the penalty and to give a supersedeas bond.
5-15 (m) If the person does not pay the amount of the penalty and
5-16 the enforcement of the penalty is not stayed, the executive
5-17 director may refer the matter to the attorney general for
5-18 collection of the amount of the penalty.
5-19 (n) Judicial review of the order of the commission:
5-20 (1) is instituted by filing a petition as provided by
5-21 Subchapter G, Chapter 2001, Government Code; and
5-22 (2) is under the substantial evidence rule.
5-23 (o) If the court sustains the occurrence of the violation,
5-24 the court may uphold or reduce the amount of the penalty and order
5-25 the person to pay the full or reduced amount of the penalty. If
5-26 the court does not sustain the occurrence of the violation, the
5-27 court shall order that no penalty is owed.
5-28 (p) When the judgment of the court becomes final, the court
5-29 shall proceed under this subsection. If the person paid the amount
5-30 of the penalty and if that amount is reduced or is not upheld by
5-31 the court, the court shall order that the appropriate amount plus
5-32 accrued interest be remitted to the person. The rate of the
5-33 interest is the rate charged on loans to depository institutions by
5-34 the New York Federal Reserve Bank, and the interest shall be paid
5-35 for the period beginning on the date the penalty was paid and
5-36 ending on the date the penalty is remitted. If the person gave a
5-37 supersedeas bond and if the amount of the penalty is not upheld by
5-38 the court, the court shall order the release of the bond. If the
5-39 person gave a supersedeas bond and if the amount of the penalty is
5-40 reduced, the court shall order the release of the bond after the
5-41 person pays the amount.
5-42 (q) A penalty collected under this section shall be remitted
5-43 to the comptroller for deposit in the general revenue fund.
5-44 (r) All proceedings under this section are subject to
5-45 Chapter 2001, Government Code.
5-46 SECTION 20. Section 34, Chapter 1036, Acts of the 62nd
5-47 Legislature, Regular Session, 1971 (Article 8451a, Vernon's Texas
5-48 Civil Statutes), is repealed.
5-49 SECTION 21. (a) Except as provided by Subsection (b) of
5-50 this section, this Act takes effect September 1, 1997.
5-51 (b) Subsection (f), Section 4, Chapter 1036, Acts of the
5-52 62nd Legislature, Regular Session, 1971 (Article 8451a, Vernon's
5-53 Texas Civil Statutes), as amended by this Act, takes effect January
5-54 1, 1998.
5-55 (c) Section 40A, Chapter 1036, Acts of the 62nd Legislature,
5-56 Regular Session, 1971 (Article 8451a, Vernon's Texas Civil
5-57 Statutes), as added by this Act, applies only to a violation of or
5-58 a rule adopted under that Act that occurs on or after the effective
5-59 date of this Act. Section 20B, Chapter 1036, Acts of the 62nd
5-60 Legislature, Regular Session, 1971 (Article 8451a, Vernon's Texas
5-61 Civil Statutes), as added by this Act, applies only to the transfer
5-62 of licenses on or after the effective date of this Act. The
5-63 changes in law made by Sections 2 through 17 of this Act apply only
5-64 to inspections made or licenses issued or renewed on or after the
5-65 effective date of this Act. Inspections made or licenses issued or
5-66 renewed before the effective date of this Act are governed by the
5-67 law in effect on the date of inspection, issuance, or renewal, and
5-68 the former law is continued in effect for that purpose.
5-69 SECTION 22. The importance of this legislation and the
6-1 crowded condition of the calendars in both houses create an
6-2 emergency and an imperative public necessity that the
6-3 constitutional rule requiring bills to be read on three several
6-4 days in each house be suspended, and this rule is hereby suspended.
6-5 * * * * *