By: Carona S.B. No. 846
A BILL TO BE ENTITLED
AN ACT
1-1 relating to certain fees and penalties applicable to the regulation
1-2 of barbers.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Subsection (b), Section 23, Chapter 65, Acts of
1-5 the 41st Legislature, 1st Called Session, 1929 (Article 8407a,
1-6 Vernon's Texas Civil Statutes), is amended to read as follows:
1-7 (b) The fees to be paid to the Board by an applicant for an
1-8 examination to determine the applicant's [his] fitness to receive a
1-9 certificate of registration to practice barbering or to practice as
1-10 a barber technician shall be set by the Board in an amount not to
1-11 exceed $50 [$10].
1-12 SECTION 2. Section 24, Chapter 65, Acts of the 41st
1-13 Legislature, 1st Called Session, 1929 (Article 8407a, Vernon's
1-14 Texas Civil Statutes), is amended to read as follows:
1-15 Sec. 24. VIOLATIONS [OFFENSES AND PENALTY]. Each of the
1-16 following is a violation of this Act for which an administrative
1-17 penalty may be imposed under Section 24A of this Act: [offenses
1-18 shall constitute a misdemeanor punishable upon conviction in a
1-19 court of competent jurisdiction by a fine of not less than
1-20 twenty-five dollars ($25.00) nor more than two hundred dollars
1-21 ($200.00).]
1-22 (A) The violation of any of the provisions of Sections
1-23 1, 2, or 3 of this Act;
1-24 (B) Permitting any person in one's employ,
2-1 supervision, or control to practice as a barber or other licensee
2-2 unless that person has a current certificate of registration or
2-3 license issued by the board;
2-4 (C) Obtaining or attempting to obtain a certificate of
2-5 registration or license by fraudulent representation;
2-6 (C-1) For anyone who owns, operates or manages a
2-7 barber school or college to work a chair or to permit teachers,
2-8 student teachers, or anyone other than an enrolled student to
2-9 render barbering services to the public in their said
2-10 establishment; and
2-11 (D) The willful failure to display a certificate of
2-12 registration or license as required by Section 19 of this Act.
2-13 SECTION 3. Chapter 65, Acts of the 41st Legislature, 1st
2-14 Called Session, 1929 (Article 8407a, Vernon's Texas Civil
2-15 Statutes), is amended by adding Sections 24A through 24M to read as
2-16 follows:
2-17 Sec. 24A. IMPOSITION OF ADMINISTRATIVE PENALTY. The board
2-18 may impose an administrative penalty on a person for a violation
2-19 under Section 24 of this Act.
2-20 Sec. 24B. AMOUNT OF ADMINISTRATIVE PENALTY. (a) The amount
2-21 of the administrative penalty may not exceed $1,000. Each day a
2-22 violation continues or occurs is a separate violation for purposes
2-23 of imposing a penalty.
2-24 (b) The amount of a penalty shall be based on:
2-25 (1) the seriousness of the violation, including the
2-26 nature, circumstances, extent, and gravity of the violation;
3-1 (2) the economic harm to property or the public caused
3-2 by the violation;
3-3 (3) the history of previous violations;
3-4 (4) the amount necessary to deter a future violation;
3-5 (5) efforts to correct the violation; and
3-6 (6) any other matter that justice may require.
3-7 Sec. 24C. REPORT AND NOTICE OF VIOLATION AND ADMINISTRATIVE
3-8 PENALTY. (a) If the executive director determines that a
3-9 violation occurred, the executive director may issue to the board a
3-10 report stating:
3-11 (1) the facts on which the determination is based; and
3-12 (2) the executive director's recommendation on the
3-13 imposition of an administrative penalty, including a recommendation
3-14 on the amount of the penalty.
3-15 (b) Not later than the 14th day after the date the report is
3-16 issued, the executive director shall give written notice of the
3-17 report to the person.
3-18 (c) The notice must:
3-19 (1) include a brief summary of the alleged violation;
3-20 (2) state the amount of the recommended penalty; and
3-21 (3) inform the person of the person's right to a
3-22 hearing on the occurrence of the violation, the amount of the
3-23 penalty, or both.
3-24 Sec. 24D. ADMINISTRATIVE PENALTY TO BE PAID OR HEARING
3-25 REQUESTED. (a) Not later than the 20th day after the date the
3-26 person receives the notice, the person in writing may:
4-1 (1) accept the determination and recommended
4-2 administrative penalty of the executive director; or
4-3 (2) make a request for a hearing on the occurrence of
4-4 the violation, the amount of the penalty, or both.
4-5 (b) If the person accepts the determination and recommended
4-6 penalty of the executive director, the board by order shall approve
4-7 the determination and impose the recommended penalty.
4-8 Sec. 24E. HEARING. (a) If the person requests a hearing or
4-9 fails to respond in a timely manner to the notice, the executive
4-10 director shall set a hearing and give written notice of the hearing
4-11 to the person. An administrative law judge of the State Office of
4-12 Administrative Hearings shall hold the hearing.
4-13 (b) The administrative law judge shall make findings of fact
4-14 and conclusions of law and promptly issue to the board a proposal
4-15 for a decision about the occurrence of the violation and the amount
4-16 of any proposed administrative penalty.
4-17 Sec. 24F. DECISION BY BOARD. (a) Based on the findings of
4-18 fact, conclusions of law, and proposal for a decision, the board by
4-19 order may:
4-20 (1) find that a violation occurred and impose an
4-21 administrative penalty; or
4-22 (2) find that a violation did not occur.
4-23 (b) The notice of the board's order given to the person must
4-24 include a statement of the right of the person to judicial review
4-25 of the order.
4-26 Sec. 24G. OPTIONS FOLLOWING DECISION: PAY OR APPEAL. Not
5-1 later than the 30th day after the date the board's order becomes
5-2 final, the person shall:
5-3 (1) pay the administrative penalty; or
5-4 (2) file a petition for judicial review contesting the
5-5 occurrence of the violation, the amount of the penalty, or both.
5-6 Sec. 24H. STAY OF ENFORCEMENT OF ADMINISTRATIVE PENALTY.
5-7 (a) Within the 30-day period prescribed by Section 24G of this
5-8 Act, a person who files a petition for judicial review may:
5-9 (1) stay enforcement of the administrative penalty by:
5-10 (A) paying the penalty to the court for
5-11 placement in an escrow account; or
5-12 (B) giving the court a supersedeas bond approved
5-13 by the court that:
5-14 (i) is for the amount of the penalty; and
5-15 (ii) is effective until all judicial
5-16 review of the board's order is final; or
5-17 (2) request the court to stay enforcement of the
5-18 penalty by:
5-19 (A) filing with the court a sworn affidavit of
5-20 the person stating that the person is financially unable to pay the
5-21 penalty and is financially unable to give the supersedeas bond; and
5-22 (B) giving a copy of the affidavit to the
5-23 executive director by certified mail.
5-24 (b) If the executive director receives a copy of an
5-25 affidavit under Subsection (a)(2) of this section, the executive
5-26 director may file with the court, not later than the fifth day
6-1 after the date the copy is received, a contest to the affidavit.
6-2 The court shall hold a hearing on the facts alleged in the
6-3 affidavit as soon as practicable and shall stay the enforcement of
6-4 the penalty on finding that the alleged facts are true. The person
6-5 who files an affidavit has the burden of proving that the person is
6-6 financially unable to pay the penalty and to give a supersedeas
6-7 bond.
6-8 Sec. 24I. COLLECTION OF ADMINISTRATIVE PENALTY. (a) If the
6-9 person does not pay the administrative penalty and the enforcement
6-10 of the penalty is not stayed, the penalty may be collected.
6-11 (b) The attorney general may sue to collect the penalty.
6-12 Sec. 24J. DECISION BY COURT. (a) If the court sustains the
6-13 finding that a violation occurred, the court may uphold or reduce
6-14 the amount of the administrative penalty and order the person to
6-15 pay the full or reduced amount of the penalty.
6-16 (b) If the court does not sustain the finding that a
6-17 violation occurred, the court shall order that a penalty is not
6-18 owed.
6-19 Sec. 24K. REMITTANCE OF ADMINISTRATIVE PENALTY AND INTEREST.
6-20 (a) If the person paid the administrative penalty and if the
6-21 amount of the penalty is reduced or the penalty is not upheld by
6-22 the court, the court shall order, when the court's judgment becomes
6-23 final, that the appropriate amount plus accrued interest be
6-24 remitted to the person.
6-25 (b) The interest accrues at the rate charged on loans to
6-26 depository institutions by the New York Federal Reserve Bank.
7-1 (c) The interest shall be paid for the period beginning on
7-2 the date the penalty is paid and ending on the date the penalty is
7-3 remitted.
7-4 Sec. 24L. RELEASE OF BOND. (a) If the person gave a
7-5 supersedeas bond and the administrative penalty is not upheld by
7-6 the court, the court shall order, when the court's judgment becomes
7-7 final, the release of the bond.
7-8 (b) If the person gave a supersedeas bond and the amount of
7-9 the penalty is reduced, the court shall order the release of the
7-10 bond after the person pays the reduced amount.
7-11 Sec. 24M. ADMINISTRATIVE PROCEDURE. A proceeding to impose
7-12 an administrative penalty is considered to be a contested case
7-13 under Chapter 2001, Government Code.
7-14 SECTION 4. (a) This Act takes effect September 1, 1999.
7-15 (b) The change in law made by this Act to Subsection (b),
7-16 Section 23, Chapter 65, Acts of the 41st Legislature, 1st Called
7-17 Session, 1929 (Article 8407a, Vernon's Texas Civil Statutes),
7-18 applies only to an application for an examination filed on or after
7-19 that date. An application filed before the effective date of this
7-20 Act is governed by the law in effect on the date the application
7-21 was filed, and the former law is continued in effect for that
7-22 purpose.
7-23 (c) The change in law made by this Act applies only to a
7-24 violation under Section 24, Chapter 65, Acts of the 41st
7-25 Legislature, 1st Called Session, 1929 (Article 8407a, Vernon's
7-26 Texas Civil Statutes), as amended by this Act, that occurs on or
8-1 after the effective date of this Act. A violation of that section
8-2 that occurs before the effective date of this Act is governed by
8-3 the law in effect on the day the violation occurred, and the
8-4 former law is continued in effect for that purpose.
8-5 (d) For purposes of Subsection (c) of this section, a
8-6 violation occurs before the effective date of this Act if any
8-7 element of the violation occurs before that date.
8-8 SECTION 5. The importance of this legislation and the
8-9 crowded condition of the calendars in both houses create an
8-10 emergency and an imperative public necessity that the
8-11 constitutional rule requiring bills to be read on three several
8-12 days in each house be suspended, and this rule is hereby suspended.