1-1 By: Carona S.B. No. 846
1-2 (In the Senate - Filed March 3, 1999; March 4, 1999, read
1-3 first time and referred to Committee on State Affairs;
1-4 March 31, 1999, reported favorably by the following vote: Yeas 8,
1-5 Nays 0; March 31, 1999, sent to printer.)
1-6 A BILL TO BE ENTITLED
1-7 AN ACT
1-8 relating to certain fees and penalties applicable to the regulation
1-9 of barbers.
1-10 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-11 SECTION 1. Subsection (b), Section 23, Chapter 65, Acts of
1-12 the 41st Legislature, 1st Called Session, 1929 (Article 8407a,
1-13 Vernon's Texas Civil Statutes), is amended to read as follows:
1-14 (b) The fees to be paid to the Board by an applicant for an
1-15 examination to determine the applicant's [his] fitness to receive a
1-16 certificate of registration to practice barbering or to practice as
1-17 a barber technician shall be set by the Board in an amount not to
1-18 exceed $50 [$10].
1-19 SECTION 2. Section 24, Chapter 65, Acts of the 41st
1-20 Legislature, 1st Called Session, 1929 (Article 8407a, Vernon's
1-21 Texas Civil Statutes), is amended to read as follows:
1-22 Sec. 24. VIOLATIONS [OFFENSES AND PENALTY]. Each of the
1-23 following is a violation of this Act for which an administrative
1-24 penalty may be imposed under Section 24A of this Act: [offenses
1-25 shall constitute a misdemeanor punishable upon conviction in a
1-26 court of competent jurisdiction by a fine of not less than
1-27 twenty-five dollars ($25.00) nor more than two hundred dollars
1-28 ($200.00).]
1-29 (A) The violation of any of the provisions of Sections
1-30 1, 2, or 3 of this Act;
1-31 (B) Permitting any person in one's employ,
1-32 supervision, or control to practice as a barber or other licensee
1-33 unless that person has a current certificate of registration or
1-34 license issued by the board;
1-35 (C) Obtaining or attempting to obtain a certificate of
1-36 registration or license by fraudulent representation;
1-37 (C-1) For anyone who owns, operates or manages a
1-38 barber school or college to work a chair or to permit teachers,
1-39 student teachers, or anyone other than an enrolled student to
1-40 render barbering services to the public in their said
1-41 establishment; and
1-42 (D) The willful failure to display a certificate of
1-43 registration or license as required by Section 19 of this Act.
1-44 SECTION 3. Chapter 65, Acts of the 41st Legislature, 1st
1-45 Called Session, 1929 (Article 8407a, Vernon's Texas Civil
1-46 Statutes), is amended by adding Sections 24A through 24M to read as
1-47 follows:
1-48 Sec. 24A. IMPOSITION OF ADMINISTRATIVE PENALTY. The board
1-49 may impose an administrative penalty on a person for a violation
1-50 under Section 24 of this Act.
1-51 Sec. 24B. AMOUNT OF ADMINISTRATIVE PENALTY. (a) The amount
1-52 of the administrative penalty may not exceed $1,000. Each day a
1-53 violation continues or occurs is a separate violation for purposes
1-54 of imposing a penalty.
1-55 (b) The amount of a penalty shall be based on:
1-56 (1) the seriousness of the violation, including the
1-57 nature, circumstances, extent, and gravity of the violation;
1-58 (2) the economic harm to property or the public caused
1-59 by the violation;
1-60 (3) the history of previous violations;
1-61 (4) the amount necessary to deter a future violation;
1-62 (5) efforts to correct the violation; and
1-63 (6) any other matter that justice may require.
1-64 Sec. 24C. REPORT AND NOTICE OF VIOLATION AND ADMINISTRATIVE
2-1 PENALTY. (a) If the executive director determines that a
2-2 violation occurred, the executive director may issue to the board a
2-3 report stating:
2-4 (1) the facts on which the determination is based; and
2-5 (2) the executive director's recommendation on the
2-6 imposition of an administrative penalty, including a recommendation
2-7 on the amount of the penalty.
2-8 (b) Not later than the 14th day after the date the report is
2-9 issued, the executive director shall give written notice of the
2-10 report to the person.
2-11 (c) The notice must:
2-12 (1) include a brief summary of the alleged violation;
2-13 (2) state the amount of the recommended penalty; and
2-14 (3) inform the person of the person's right to a
2-15 hearing on the occurrence of the violation, the amount of the
2-16 penalty, or both.
2-17 Sec. 24D. ADMINISTRATIVE PENALTY TO BE PAID OR HEARING
2-18 REQUESTED. (a) Not later than the 20th day after the date the
2-19 person receives the notice, the person in writing may:
2-20 (1) accept the determination and recommended
2-21 administrative penalty of the executive director; or
2-22 (2) make a request for a hearing on the occurrence of
2-23 the violation, the amount of the penalty, or both.
2-24 (b) If the person accepts the determination and recommended
2-25 penalty of the executive director, the board by order shall approve
2-26 the determination and impose the recommended penalty.
2-27 Sec. 24E. HEARING. (a) If the person requests a hearing or
2-28 fails to respond in a timely manner to the notice, the executive
2-29 director shall set a hearing and give written notice of the hearing
2-30 to the person. An administrative law judge of the State Office of
2-31 Administrative Hearings shall hold the hearing.
2-32 (b) The administrative law judge shall make findings of fact
2-33 and conclusions of law and promptly issue to the board a proposal
2-34 for a decision about the occurrence of the violation and the amount
2-35 of any proposed administrative penalty.
2-36 Sec. 24F. DECISION BY BOARD. (a) Based on the findings of
2-37 fact, conclusions of law, and proposal for a decision, the board by
2-38 order may:
2-39 (1) find that a violation occurred and impose an
2-40 administrative penalty; or
2-41 (2) find that a violation did not occur.
2-42 (b) The notice of the board's order given to the person must
2-43 include a statement of the right of the person to judicial review
2-44 of the order.
2-45 Sec. 24G. OPTIONS FOLLOWING DECISION: PAY OR APPEAL. Not
2-46 later than the 30th day after the date the board's order becomes
2-47 final, the person shall:
2-48 (1) pay the administrative penalty; or
2-49 (2) file a petition for judicial review contesting the
2-50 occurrence of the violation, the amount of the penalty, or both.
2-51 Sec. 24H. STAY OF ENFORCEMENT OF ADMINISTRATIVE PENALTY.
2-52 (a) Within the 30-day period prescribed by Section 24G of this
2-53 Act, a person who files a petition for judicial review may:
2-54 (1) stay enforcement of the administrative penalty by:
2-55 (A) paying the penalty to the court for
2-56 placement in an escrow account; or
2-57 (B) giving the court a supersedeas bond approved
2-58 by the court that:
2-59 (i) is for the amount of the penalty; and
2-60 (ii) is effective until all judicial
2-61 review of the board's order is final; or
2-62 (2) request the court to stay enforcement of the
2-63 penalty by:
2-64 (A) filing with the court a sworn affidavit of
2-65 the person stating that the person is financially unable to pay the
2-66 penalty and is financially unable to give the supersedeas bond; and
2-67 (B) giving a copy of the affidavit to the
2-68 executive director by certified mail.
2-69 (b) If the executive director receives a copy of an
3-1 affidavit under Subsection (a)(2) of this section, the executive
3-2 director may file with the court, not later than the fifth day
3-3 after the date the copy is received, a contest to the affidavit.
3-4 The court shall hold a hearing on the facts alleged in the
3-5 affidavit as soon as practicable and shall stay the enforcement of
3-6 the penalty on finding that the alleged facts are true. The person
3-7 who files an affidavit has the burden of proving that the person is
3-8 financially unable to pay the penalty and to give a supersedeas
3-9 bond.
3-10 Sec. 24I. COLLECTION OF ADMINISTRATIVE PENALTY. (a) If the
3-11 person does not pay the administrative penalty and the enforcement
3-12 of the penalty is not stayed, the penalty may be collected.
3-13 (b) The attorney general may sue to collect the penalty.
3-14 Sec. 24J. DECISION BY COURT. (a) If the court sustains the
3-15 finding that a violation occurred, the court may uphold or reduce
3-16 the amount of the administrative penalty and order the person to
3-17 pay the full or reduced amount of the penalty.
3-18 (b) If the court does not sustain the finding that a
3-19 violation occurred, the court shall order that a penalty is not
3-20 owed.
3-21 Sec. 24K. REMITTANCE OF ADMINISTRATIVE PENALTY AND INTEREST.
3-22 (a) If the person paid the administrative penalty and if the
3-23 amount of the penalty is reduced or the penalty is not upheld by
3-24 the court, the court shall order, when the court's judgment becomes
3-25 final, that the appropriate amount plus accrued interest be
3-26 remitted to the person.
3-27 (b) The interest accrues at the rate charged on loans to
3-28 depository institutions by the New York Federal Reserve Bank.
3-29 (c) The interest shall be paid for the period beginning on
3-30 the date the penalty is paid and ending on the date the penalty is
3-31 remitted.
3-32 Sec. 24L. RELEASE OF BOND. (a) If the person gave a
3-33 supersedeas bond and the administrative penalty is not upheld by
3-34 the court, the court shall order, when the court's judgment becomes
3-35 final, the release of the bond.
3-36 (b) If the person gave a supersedeas bond and the amount of
3-37 the penalty is reduced, the court shall order the release of the
3-38 bond after the person pays the reduced amount.
3-39 Sec. 24M. ADMINISTRATIVE PROCEDURE. A proceeding to impose
3-40 an administrative penalty is considered to be a contested case
3-41 under Chapter 2001, Government Code.
3-42 SECTION 4. (a) This Act takes effect September 1, 1999.
3-43 (b) The change in law made by this Act to Subsection (b),
3-44 Section 23, Chapter 65, Acts of the 41st Legislature, 1st Called
3-45 Session, 1929 (Article 8407a, Vernon's Texas Civil Statutes),
3-46 applies only to an application for an examination filed on or after
3-47 that date. An application filed before the effective date of this
3-48 Act is governed by the law in effect on the date the application
3-49 was filed, and the former law is continued in effect for that
3-50 purpose.
3-51 (c) The change in law made by this Act applies only to a
3-52 violation under Section 24, Chapter 65, Acts of the 41st
3-53 Legislature, 1st Called Session, 1929 (Article 8407a, Vernon's
3-54 Texas Civil Statutes), as amended by this Act, that occurs on or
3-55 after the effective date of this Act. A violation of that section
3-56 that occurs before the effective date of this Act is governed by
3-57 the law in effect on the day the violation occurred, and the
3-58 former law is continued in effect for that purpose.
3-59 (d) For purposes of Subsection (c) of this section, a
3-60 violation occurs before the effective date of this Act if any
3-61 element of the violation occurs before that date.
3-62 SECTION 5. The importance of this legislation and the
3-63 crowded condition of the calendars in both houses create an
3-64 emergency and an imperative public necessity that the
3-65 constitutional rule requiring bills to be read on three several
3-66 days in each house be suspended, and this rule is hereby suspended.
3-67 * * * * *