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                                  * * * * *