By Carona                                              S.B. No. 846
         76R7296 GJH-D                           
                                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
1-22     ($200.00).]
1-23                 (A)  The violation of any of the provisions of Sections
1-24     1, 2, or 3 of this Act;
 2-1                 (B)  Permitting any person in one's employ,
 2-2     supervision, or control to practice as a barber or other licensee
 2-3     unless that person has a current certificate of registration or
 2-4     license issued by the board;
 2-5                 (C)  Obtaining or attempting to obtain a certificate of
 2-6     registration or license by fraudulent representation;
 2-7                 (C-1)  For anyone who owns, operates or manages a
 2-8     barber school or college to work a chair or to permit teachers,
 2-9     student teachers, or anyone other than an enrolled student to
2-10     render barbering services to the public in their said
2-11     establishment; and
2-12                 (D)  The willful failure to display a certificate of
2-13     registration or license as required by Section 19 of this Act.
2-14           SECTION 3.  Chapter 65, Acts of the 41st Legislature, 1st
2-15     Called Session, 1929 (Article 8407a, Vernon's Texas Civil
2-16     Statutes), is amended by adding Sections 24A-24M to read as
2-17     follows:
2-18           Sec. 24A.  IMPOSITION OF ADMINISTRATIVE PENALTY.  The board
2-19     may impose an administrative penalty on a person for a violation
2-20     under Section 24 of this Act.
2-21           Sec. 24B.  AMOUNT OF ADMINISTRATIVE PENALTY.  (a)  The amount
2-22     of the administrative penalty may not exceed $1,000.  Each day a
2-23     violation continues or occurs is a separate violation for purposes
2-24     of imposing a penalty.
2-25           (b)  The amount of a penalty shall be based on:
2-26                 (1)  the seriousness of the violation, including the
2-27     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:
3-27                 (1)  accept the determination and recommended
 4-1     administrative penalty of the executive director; or
 4-2                 (2)  make a request for a hearing on the occurrence of
 4-3     the violation, the amount of the penalty, or both.
 4-4           (b)  If the person accepts the determination and recommended
 4-5     penalty of the executive director, the board by order shall approve
 4-6     the determination and impose the recommended penalty.
 4-7           Sec. 24E.  HEARING.  (a)  If the person requests a hearing or
 4-8     fails to respond in a timely manner to the notice, the executive
 4-9     director shall set a hearing and give written notice of the hearing
4-10     to the person.  An administrative law judge of the State Office of
4-11     Administrative Hearings shall hold the hearing.
4-12           (b)  The administrative law judge shall make findings of fact
4-13     and conclusions of law and promptly issue to the board a proposal
4-14     for a decision about the occurrence of the violation and the amount
4-15     of any proposed administrative penalty.
4-16           Sec. 24F.  DECISION BY BOARD.  (a)  Based on the findings of
4-17     fact, conclusions of law, and proposal for a decision, the board by
4-18     order may:
4-19                 (1)  find that a violation occurred and impose an
4-20     administrative penalty; or
4-21                 (2)  find that a violation did not occur.
4-22           (b)  The notice of the board's order given to the person must
4-23     include a statement of the right of the person to judicial review
4-24     of the order.
4-25           Sec. 24G.  OPTIONS FOLLOWING DECISION: PAY OR APPEAL.  Not
4-26     later than the 30th day after the date the board's order becomes
4-27     final, the person shall:
 5-1                 (1)  pay the administrative penalty; or
 5-2                 (2)  file a petition for judicial review contesting the
 5-3     occurrence of the violation, the amount of the penalty, or both.
 5-4           Sec. 24H.  STAY OF ENFORCEMENT OF ADMINISTRATIVE PENALTY.
 5-5     (a)  Within the 30-day period prescribed by Section 24G of this
 5-6     Act, a person who files a petition for judicial review may:
 5-7                 (1)  stay enforcement of the administrative penalty by:
 5-8                       (A)  paying the penalty to the court for
 5-9     placement in an escrow account; or
5-10                       (B)  giving the court a supersedeas bond approved
5-11     by the court that:
5-12                             (i)  is for the amount of the penalty; and
5-13                             (ii)  is effective until all judicial
5-14     review of the board's order is final; or
5-15                 (2)  request the court to stay enforcement of the
5-16     penalty by:
5-17                       (A)  filing with the court a sworn affidavit of
5-18     the person stating that the person is financially unable to pay the
5-19     penalty and is financially unable to give the supersedeas bond; and
5-20                       (B)  giving a copy of the affidavit to the
5-21     executive director by certified mail.
5-22           (b)  If the executive director receives a copy of an
5-23     affidavit under Subsection (a)(2) of this section, the executive
5-24     director may file with the court, not later than the fifth day
5-25     after the date the copy is received, a contest to the affidavit.
5-26     The court shall hold a hearing on the facts alleged in the
5-27     affidavit as soon as practicable and shall stay the enforcement of
 6-1     the penalty on finding that the alleged facts are true.  The person
 6-2     who files an affidavit has the burden of proving that the person is
 6-3     financially unable to pay the penalty and to give a supersedeas
 6-4     bond.
 6-5           Sec. 24I.  COLLECTION OF ADMINISTRATIVE PENALTY.  (a)  If the
 6-6     person does not pay the administrative penalty and the enforcement
 6-7     of the penalty is not stayed, the penalty may be collected.
 6-8           (b)  The attorney general may sue to collect the penalty.
 6-9           Sec. 24J.  DECISION BY COURT.  (a)  If the court sustains the
6-10     finding that a violation occurred, the court may uphold or reduce
6-11     the amount of the administrative penalty and order the person to
6-12     pay the full or reduced amount of the penalty.
6-13           (b)  If the court does not sustain the finding that a
6-14     violation occurred, the court shall order that a penalty is not
6-15     owed.
6-16           Sec. 24K.  REMITTANCE OF ADMINISTRATIVE PENALTY AND INTEREST.
6-17     (a)  If the person paid the administrative penalty and if the
6-18     amount of the penalty is reduced or the penalty is not upheld by
6-19     the court, the court shall order, when the court's judgment becomes
6-20     final, that the appropriate amount plus accrued interest be
6-21     remitted to the person.
6-22           (b)  The interest accrues at the rate charged on loans to
6-23     depository institutions by the New York Federal Reserve Bank.
6-24           (c)  The interest shall be paid for the period beginning on
6-25     the date the penalty is paid and ending on the date the penalty is
6-26     remitted.
6-27           Sec. 24L.  RELEASE OF BOND.  (a)  If the person gave a
 7-1     supersedeas bond and the administrative penalty is not upheld by
 7-2     the court, the court shall order, when the court's judgment becomes
 7-3     final, the release of the bond.
 7-4           (b)  If the person gave a supersedeas bond and the amount of
 7-5     the penalty is reduced, the court shall order the release of the
 7-6     bond after the person pays the reduced amount.
 7-7           Sec. 24M.  ADMINISTRATIVE PROCEDURE.  A proceeding to impose
 7-8     an administrative penalty is considered to be a contested case
 7-9     under Chapter 2001, Government Code.
7-10           SECTION 4.  (a)  This Act takes effect September 1, 1999.
7-11           (b)  The change in law made by this Act to Section 23(b),
7-12     Chapter 65, Acts of the 41st Legislature, 1st Called Session, 1929
7-13     (Article 8407a, Vernon's Texas Civil Statutes), applies only to an
7-14     application for an examination filed on or after that date.  An
7-15     application filed before the effective date of this Act is governed
7-16     by the law in effect on the date the application was filed, and the
7-17     former law is continued in effect for that purpose.
7-18           (c)  The change in law made by this Act applies only to a
7-19     violation under Section 24, Chapter 65, Acts of the 41st
7-20     Legislature, 1st Called Session, 1929 (Article 8407a, Vernon's
7-21     Texas Civil Statutes), as amended by this Act, that occurs on or
7-22     after the effective  date of this Act.  A violation of that section
7-23     that occurs before the effective date of this Act is governed by
7-24     the law in effect on the day the violation occurred, and the
7-25     former law is continued in effect for that purpose.
7-26           (d)  For purposes of Subsection (c) of this section, a
7-27     violation occurs before the effective date of this Act if any
 8-1     element of the violation occurs before that date.
 8-2           SECTION 5.  The importance of this legislation and the
 8-3     crowded condition of the calendars in both houses create an
 8-4     emergency and an imperative public necessity that the
 8-5     constitutional rule requiring bills to be read on three several
 8-6     days in each house be suspended, and this rule is hereby suspended.