By Gutierrez H.B. No. 3094
Line and page numbers may not match official copy.
Bill not drafted by TLC or Senate E&E.
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to certain fees and penalties applicable to the regulation
1-3 of barbers.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 SECTION 1. Section 23(b), Chapter 65, Acts of the 41st
1-6 Legislature, 1st Called Session, 1929 (Article 8407a, Vernon's
1-7 Texas Civil Statutes), is amended to read as follows:
1-8 (b) The fees to be paid to the Board by an applicant for an
1-9 examination to determine the applicant's [his] fitness to receive a
1-10 certificate of registration to practice barbering or to practice as
1-11 a barber technician shall be set by the board in an amount not to
1-12 exceed $50 [$10].
1-13 SECTION 2. Section 24, Chapter 65, Acts of the 41st
1-14 Legislature, 1st Called Session, 1929 (Article 8407a, Vernon's
1-15 Texas Civil Statutes), is amended to read as follows:
1-16 Sec. 24. VIOLATIONS [OFFENSES AND PENALTY]. Each of the
1-17 following is a violation of this Act for which an administrative
1-18 penalty may be imposed under Section 24A of this Act: [offenses
1-19 shall constitute a misdemeanor punishable upon conviction in a
1-20 court of competent jurisdiction by a fine of not less than
1-21 twenty-five dollars ($25.00) nor more than two hundred dollars
2-1 ($200.00).]
2-2 (A) The violation of any of the provisions of
2-3 Sections 1, 2, or 3 of this Act;
2-4 (B) Permitting any person in one's employ,
2-5 supervision, or control to practice as a barber or other licensee
2-6 unless that person has a current certificate of registration or
2-7 license issued by the board;
2-8 (C) Obtaining or attempting to obtain a
2-9 certificate of registration or license by fraudulent
2-10 representation;
2-11 (C-1) For anyone who owns, operates or manages a
2-12 barber school or college to work a chair or to permit teachers,
2-13 student teachers, or anyone other than an enrolled student to
2-14 render barbering services to the public in their said
2-15 establishment; and
2-16 (D) The willful failure to display a certificate
2-17 of registration or license as required by Section 19 of this Act.
2-18 SECTION 3. Chapter 65, Acts of the 41st Legislature, 1st
2-19 Called Session, 1929 (Article 8407a, Vernon's Texas Civil
2-20 Statutes), is amended by adding Sections 24A-24M to read as
2-21 follows:
2-22 Sec. 24A. IMPOSITION OF ADMINISTRATIVE PENALTY. The board
2-23 may impose an administrative penalty on a person for a violation
2-24 under Section 24 of this Act.
2-25 Sec. 24B. AMOUNT OF ADMINISTRATIVE PENALTY. (a) The amount
3-1 of the administrative penalty may not exceed $1,000. Each day a
3-2 violation continues or occurs is a separate violation for purposes
3-3 of imposing a penalty.
3-4 (b) The amount of a penalty shall be based on:
3-5 (1) the seriousness of the violation, including the
3-6 nature, circumstances, extent, and gravity of the violation;
3-7 (2) the economic harm to property or the public caused
3-8 by the violation;
3-9 (3) the history of previous violations;
3-10 (4) the amount necessary to deter a future violation;
3-11 (5) efforts to correct the violation; and
3-12 (6) any other matter that justice may require.
3-13 Sec. 24C. REPORT AND NOTICE OF VIOLATION AND ADMINISTRATIVE
3-14 PENALTY. (a) If the executive director determines that a
3-15 violation occurred, the executive director may issue to the board a
3-16 report stating:
3-17 (1) the facts on which the determination is based; and
3-18 (2) the executive director's recommendation on the
3-19 imposition of an administrative penalty, including a recommendation
3-20 on the amount of the penalty.
3-21 (b) Not later than the 14th day after the date the report is
3-22 issued, the executive director shall give written notice of the
3-23 report to the person.
3-24 (c) The notice must:
3-25 (1) include a brief summary of the alleged violation;
4-1 (2) state the amount of the recommended penalty; and
4-2 (3) inform the person of the person's right to a
4-3 hearing on the occurrence of the violation, the amount of the
4-4 penalty, or both.
4-5 Sec. 24D. ADMINISTRATIVE PENALTY TO BE PAID OR HEARING
4-6 REQUESTED. (a) Not later than the 20th day after the date the
4-7 person receives the notice, the person in writing may:
4-8 (1) accept the determination and recommended
4-9 administrative penalty of the executive director; or
4-10 (2) make a request for a hearing on the occurrence of
4-11 the violation, the amount of the penalty, or both.
4-12 (b) If the person accepts the determination and recommended
4-13 penalty of the executive director, the board by order shall approve
4-14 the determination and impose the recommended penalty.
4-15 Sec. 24E. HEARING. (a) If the person requests a hearing or
4-16 fails to respond in a timely manner to the notice, the executive
4-17 director shall set a hearing and give written notice of the hearing
4-18 to the person. An administrative law judge of the State Office of
4-19 Administrative Hearings shall hold the hearing.
4-20 (b) The administrative law judge shall make findings of fact
4-21 and conclusions of law and promptly issue to the board a proposal
4-22 for a decision about the occurrence of the violation and the amount
4-23 of any proposed administrative penalty.
4-24 Sec. 24F. DECISION BY BOARD. (a) Based on the findings of
4-25 fact, conclusions of law, and proposal for a decision, the board by
5-1 order may:
5-2 (1) find that a violation occurred and impose an
5-3 administrative penalty; or
5-4 (2) find that a violation did not occur.
5-5 (b) The notice of the board's order given to the person must
5-6 include a statement of the right of the person to judicial review
5-7 of the order.
5-8 Sec. 24G. OPTIONS FOLLOWING DECISION: PAY OR APPEAL. Not
5-9 later than the 30th day after the date the board's order becomes
5-10 final, the person shall:
5-11 (1) pay the administrative penalty; or
5-12 (2) file a petition for judicial review contesting the
5-13 occurrence of the violation, the amount of the penalty, or both.
5-14 Sec. 24H. STAY OF ENFORCEMENT OF ADMINISTRATIVE PENALTY.
5-15 (a) Within the 30-day period prescribed by Section 24G of this
5-16 Act, a person who files a petition for judicial review may:
5-17 (1) stay enforcement of the administrative penalty by:
5-18 (A) paying the penalty to the court for
5-19 placement in an escrow account; or
5-20 (B) giving the court a supersedeas bond approved
5-21 by the court that:
5-22 (i) is for the amount of the penalty; and
5-23 (ii) is effective until all judicial
5-24 review of the board's order is final; or
5-25 (2) request the court to stay enforcement of the
6-1 penalty by:
6-2 (A) filing with the court a sworn affidavit of
6-3 the person stating that the person is financially unable to pay the
6-4 penalty and is financially unable to give the supersedeas bond; and
6-5 (B) giving a copy of the affidavit to the
6-6 executive director by certified mail.
6-7 (b) If the executive director receives a copy of an
6-8 affidavit under Subsection (a)(2) of this section, the executive
6-9 director may file with the court, not later than the fifth day
6-10 after the date the copy is received, a contest to the affidavit.
6-11 The court shall hold a hearing on the facts alleged in the
6-12 affidavit as soon as practicable and shall stay the enforcement of
6-13 the penalty on finding that the alleged facts are true. The person
6-14 who files an affidavit has the burden of proving that the person is
6-15 financially unable to pay the penalty and to give a supersedeas
6-16 bond.
6-17 Sec. 24I. COLLECTION OF ADMINISTRATIVE PENALTY. (a) If the
6-18 person does not pay the administrative penalty and the enforcement
6-19 of the penalty is not stayed, the penalty may be collected.
6-20 (b) The attorney general may sue to collect the penalty.
6-21 Sec. 24J. DECISION BY COURT. (a) If the court sustains the
6-22 finding that a violation occurred, the court may uphold or reduce
6-23 the amount of the administrative penalty and order the person to
6-24 pay the full or reduced amount of the penalty.
6-25 (b) If the court does not sustain the finding that a
7-1 violation occurred, the court shall order that a penalty is not
7-2 owed.
7-3 Sec. 24K. REMITTANCE OF ADMINISTRATIVE PENALTY AND INTEREST.
7-4 (a) If the person paid the administrative penalty and if the
7-5 amount of the penalty is reduced or the penalty is not upheld by
7-6 the court, the court shall order, when the court's judgment becomes
7-7 final, that the appropriate amount plus accrued interest be
7-8 remitted to the person.
7-9 (b) The interest accrues at the rate charged on loans to
7-10 depository institutions by the New York Federal Reserve Bank.
7-11 (c) The interest shall be paid for the period beginning on
7-12 the date the penalty is paid and ending on the date the penalty is
7-13 remitted.
7-14 Sec. 24L. RELEASE OF BOND. (a) If the person gave a
7-15 supersedeas bond and the administrative penalty is not upheld by
7-16 the court, the court shall order, when the court's judgment becomes
7-17 final, the release of the bond.
7-18 (b) If the person gave a supersedeas bond and the amount of
7-19 the penalty is reduced, the court shall order the release of the
7-20 bond after the person pays the reduced amount.
7-21 Sec. 24M. ADMINISTRATIVE PROCEDURE. A proceeding to impose
7-22 an administrative penalty is considered to be a contested case
7-23 under Chapter 2001, Government Code.
7-24 SECTION 4. (a) This Act takes effect September 1, 1999.
7-25 (b) The change in law made by this Act to Section 23(b),
8-1 Chapter 65, Acts of the 41st Legislature, 1st Called Session, 1929
8-2 (Article 8407a, Vernon's Texas Civil Statutes), applies only to an
8-3 application for an examination filed on or after that date. An
8-4 application filed before the effective date of this Act is governed
8-5 by the law in effect on the date the application was filed, and the
8-6 former law is continued in effect for that purpose.
8-7 (c) The change in law made by this Act applies only to a
8-8 violation under Section 24, Chapter 65, Acts of the 41st
8-9 Legislature, 1st Called Session, 1929 (Article 8407a, Vernon's
8-10 Texas Civil Statutes), as amended by this Act, that occurs on or
8-11 after the effective date of this Act. A violation of that section
8-12 that occurs before the effective date of this Act is governed by
8-13 the law in effect on the day the violation occurred, and the
8-14 former law is continued in effect for that purpose.
8-15 (d) For purposes of Subsection (c) of this section, a
8-16 violation occurs before the effective date of this Act if any
8-17 element of the violation occurs before that date.
8-18 SECTION 5. The importance of this legislation and the
8-19 crowded condition of the calendars in both houses create an
8-20 emergency and an imperative public necessity that the
8-21 constitutional rule requiring bills to be read on three several
8-22 days in each house be suspended, and this rule is hereby suspended.