By Madla                                               S.B. No. 932
         76R2029 CMR-D                           
                                A BILL TO BE ENTITLED
 1-1                                   AN ACT
 1-2     relating to regulation of tattoo studios; providing penalties.
 1-3           BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
 1-4           SECTION 1.  Section 146.003(b), Health and Safety Code, is
 1-5     amended to read as follows:
 1-6           (b)  [On receipt of a tattoo studio license application, the
 1-7     department shall inspect the proposed tattoo studio to determine
 1-8     compliance with this chapter and rules adopted by the board under
 1-9     this chapter.  In addition, the department shall request
1-10     confirmation from the appropriate building and zoning officials in
1-11     the municipality or county in which the studio is proposed to be
1-12     located to determine compliance with existing building and zoning
1-13     codes applicable to the studio.]  The department may issue a
1-14     license or temporary location license for a tattoo studio after
1-15     determining that the studio is in compliance with applicable
1-16     statutes and[,] rules[, and building and zoning codes].
1-17           SECTION 2.  Section 146.007, Health and Safety Code, is
1-18     amended to read as follows:
1-19           Sec. 146.007.  COMPLIANCE WITH CHAPTER AND RULES.  (a)  A
1-20     person who owns, operates, or maintains a tattoo studio or
1-21     practices tattooing at a temporary location shall comply with this
1-22     chapter, Chapter 431, and rules adopted under this chapter and
1-23     Chapter 431.
1-24           (b)  The board, commissioner, and department may enforce
 2-1     Chapter 431 in relation to a drug, cosmetic, or device that is used
 2-2     in tattooing and that is not otherwise subject to that chapter as
 2-3     if the drug, cosmetic, or device satisfied the definitions assigned
 2-4     those terms under Section 431.002.
 2-5           SECTION 3.  Section 146.011(c), Health and Safety Code, is
 2-6     amended to read as follows:
 2-7           (c)  Tools and equipment shall be sterilized by:
 2-8                 (1)  the use of a dry heat sterilizer [heating in an
 2-9     oven at 320 degrees Fahrenheit for at least one hour]; or
2-10                 (2)  steam pressure treatment in an autoclave.
2-11           SECTION 4.  Section 146.017(b), Health and Safety Code, is
2-12     amended to read as follows:
2-13           (b)  The refusal to issue a license, the suspension or
2-14     revocation of a license, and any appeals are governed by the
2-15     board's formal hearing procedures and the procedures for a
2-16     contested case hearing under Chapter 2001, Government Code.  A
2-17     person may appeal a final decision of the department as provided by
2-18     that chapter [the Administrative Procedure and Texas Register Act
2-19     (Article 6252-13a, Vernon's Texas Civil Statutes)].
2-20           SECTION 5.  Section 146.018(b), Health and Safety Code, is
2-21     amended to read as follows:
2-22           (b)  An offense under this section is a Class A [C]
2-23     misdemeanor.
2-24           SECTION 6.  Section 146.019, Health and Safety Code, is
2-25     amended to read as follows:
2-26           Sec. 146.019.  ADMINISTRATIVE PENALTY.  (a)  The commissioner
2-27     may impose an administrative penalty against a person who violates
 3-1     a rule adopted under this chapter or Chapter 431 [Section 146.007]
 3-2     or an order adopted or license issued under this chapter or Chapter
 3-3     431.
 3-4           (b)  The penalty for a violation may be in an amount not to
 3-5     exceed $5,000.  Each day a violation continues or occurs is a
 3-6     separate violation for purposes of imposing a penalty.
 3-7           (c)  The amount of the penalty shall be based on:
 3-8                 (1)  the seriousness of the violation, including the
 3-9     nature, circumstances, extent, and gravity of any prohibited acts,
3-10     and the hazard or potential hazard created to the health, safety,
3-11     or economic welfare of the public;
3-12                 (2)  the economic harm to property or the environment
3-13     caused by the violation;
3-14                 (3)  the history of previous violations;
3-15                 (4)  the amounts necessary to deter future violations;
3-16                 (5)  efforts to correct the violation; and
3-17                 (6)  any other matter that justice may require.
3-18           (d)  [The commissioner who determines that a violation has
3-19     occurred shall issue an order that states the facts on which the
3-20     determination is based, including an assessment of the penalty.]
3-21           [(e)]  The department [Within 14 days after the date the
3-22     report is issued, the commissioner] shall give written notice of
3-23     alleged violations [the report] to the person.  The notice may be
3-24     given by certified mail.  The notice must include a brief summary
3-25     of the alleged violation and a statement of the amount of the
3-26     recommended penalty and must inform the person that the person has
3-27     a right to a hearing on the occurrence of the violation, the amount
 4-1     of the penalty, or both the occurrence of the violation and the
 4-2     amount of the penalty.
 4-3           (e) [(f)]  Within 20 days after the date the person receives
 4-4     the notice, the person in writing may accept the determination and
 4-5     recommended penalty [of the commissioner] or may make written
 4-6     request for a hearing on the occurrence of the violation, the
 4-7     amount of the penalty, or both the occurrence of the violation and
 4-8     the amount of the penalty.
 4-9           (f) [(g)]  If the person accepts the determination and
4-10     recommended penalty [of the commissioner], the commissioner by
4-11     order shall approve the determination and impose the recommended
4-12     penalty.
4-13           (g) [(h)]  If the person requests a hearing [or fails to
4-14     respond timely to the notice], the department [commissioner] shall
4-15     set a hearing and give notice of the hearing to the person.  The
4-16     hearing shall be held by an administrative law judge of the State
4-17     Office of Administrative Hearings.  The administrative law judge
4-18     shall make findings of fact and conclusions of law and promptly
4-19     issue to the commissioner a proposal for a decision about the
4-20     occurrence of the violation and the amount of a proposed penalty.
4-21     Based on the findings of fact, conclusions of law, and proposal for
4-22     a decision, the commissioner by order may find that a violation has
4-23     occurred and impose a penalty or may find that no violation
4-24     occurred.
4-25           (h) [(i)]  The notice of the commissioner's order given to
4-26     the person under Chapter 2001, Government Code, must include a
4-27     statement of the right of the person to judicial review of the
 5-1     order.
 5-2           (i) [(j)]  Within 30 days after the date the commissioner's
 5-3     order is final as provided by Subchapter F, Chapter 2001,
 5-4     Government Code, the person shall:
 5-5                 (1)  pay the amount of the penalty;
 5-6                 (2)  pay the amount of the penalty and file a petition
 5-7     for judicial review contesting the occurrence of the violation, the
 5-8     amount of the penalty, or both the occurrence of the violation and
 5-9     the amount of the penalty; or
5-10                 (3)  without paying the amount of the penalty, file a
5-11     petition for judicial review contesting the occurrence of the
5-12     violation, the amount of the penalty, or both the occurrence of the
5-13     violation and the amount of the penalty.
5-14           (j) [(k)]  Within the 30-day period, a person who acts under
5-15     Subsection (i)(3) [(j)(3) of this section] may:
5-16                 (1)  stay enforcement of the penalty by:
5-17                       (A)  paying the amount of the penalty to the
5-18     court for placement in an escrow account; or
5-19                       (B)  giving to the court a supersedeas bond
5-20     approved by the court for the amount of the penalty and that is
5-21     effective until all judicial review of the commissioner's order is
5-22     final; or
5-23                 (2)  request the court to stay enforcement of the
5-24     penalty by:
5-25                       (A)  filing with the court a sworn affidavit of
5-26     the person stating that the person is financially unable to pay the
5-27     amount of the penalty and is financially unable to give the
 6-1     supersedeas bond; and
 6-2                       (B)  giving a copy of the affidavit to the
 6-3     commissioner by certified mail.
 6-4           (k) [(l)]  The commissioner who receives a copy of an
 6-5     affidavit under Subsection (j)(2) [(k)(2) of this section] may
 6-6     file, with  the court within five days after the date the copy is
 6-7     received, a contest to the affidavit.  The court shall hold a
 6-8     hearing on the facts alleged in the affidavit as soon as
 6-9     practicable and shall stay the enforcement of the penalty on
6-10     finding that the alleged facts are true.  The person who files an
6-11     affidavit has the burden of proving that the person is financially
6-12     unable to pay the amount of the penalty and to give a supersedeas
6-13     bond.
6-14           (l) [(m)]  If the person does not pay the amount of the
6-15     penalty and the enforcement of the penalty is not stayed, the
6-16     commissioner may refer the matter to the attorney general for
6-17     collection of the amount of the penalty.
6-18           (m) [(n)]  Judicial review of the order of the commissioner:
6-19                 (1)  is instituted by filing a petition as provided by
6-20     Subchapter G, Chapter 2001, Government Code [and its subsequent
6-21     amendments]; and
6-22                 (2)  is under the substantial evidence rule.
6-23           (n) [(o)]  If the court sustains the occurrence of the
6-24     violation, the court may uphold or reduce the amount of the penalty
6-25     and order the person to pay the full or reduced amount of the
6-26     penalty.  If the court does not sustain the occurrence of the
6-27     violation, the court shall order that no penalty is owed.
 7-1           (o) [(p)]  When the judgment of the court becomes final, the
 7-2     court shall proceed under this subsection.  If the person paid the
 7-3     amount of the penalty and if that amount is reduced or is not
 7-4     upheld by the court, the court shall order that the appropriate
 7-5     amount plus accrued interest be remitted to the person.  The rate
 7-6     of the interest is the rate charged on loans to depository
 7-7     institutions by the New York Federal Reserve Bank, and the interest
 7-8     shall be paid for the period beginning on the date the penalty was
 7-9     paid and ending on the date the penalty is remitted.  If the person
7-10     gave a supersedeas bond and if the amount of the penalty is not
7-11     upheld by the court, the court shall order the release of the bond.
7-12     If the person gave a supersedeas bond and if the amount of the
7-13     penalty is reduced, the court shall order the release of the bond
7-14     after the person pays the amount.
7-15           (p) [(q)]  A penalty collected under this section shall be
7-16     remitted to the comptroller for deposit in the general revenue
7-17     fund.
7-18           (q) [(r)]  All proceedings under this section are subject to
7-19     Chapter 2001, Government Code.
7-20           SECTION 7.  Chapter 146, Health and Safety Code, is amended
7-21     by adding Section 146.020 to read as follows:
7-22           Sec. 146.020.  CIVIL PENALTY; INJUNCTION.  (a)  If it appears
7-23     that a person has violated, is violating, or is threatening to
7-24     violate this chapter or an order issued or a rule adopted under
7-25     this chapter, the commissioner may request the attorney general or
7-26     the district attorney, county attorney, or municipal attorney in
7-27     the jurisdiction where the violation is alleged to have occurred,
 8-1     is occurring, or may occur to institute a civil suit for:
 8-2                 (1)  an order enjoining the violation;
 8-3                 (2)  a permanent or temporary injunction, a temporary
 8-4     restraining order, or other appropriate remedy, if the department
 8-5     shows that the person has engaged in or is engaging in a violation;
 8-6                 (3)  the assessment and recovery of a civil penalty; or
 8-7                 (4)  both injunctive relief and a civil penalty.
 8-8           (b)  A civil penalty may not exceed $5,000 a day for each
 8-9     violation.  Each day the violation occurs constitutes a separate
8-10     violation for the purposes of the assessment of a civil penalty.
8-11           (c)  In determining the amount of the civil penalty, the
8-12     court hearing the matter shall consider:
8-13                 (1)  the person's history of previous violations;
8-14                 (2)  the seriousness of the violation;
8-15                 (3)  the hazard to the health and safety of the public;
8-16                 (4)  the demonstrated good faith of the person charged;
8-17     and
8-18                 (5)  any other matter as justice may require.
8-19           (d)  Venue for a suit brought under this section is in the
8-20     county in which the violation occurred or in Travis County.
8-21           (e)  A civil penalty recovered in a suit instituted by a
8-22     local government under this chapter shall be paid to the local
8-23     government.
8-24           (f)  The commissioner or the attorney general may each
8-25     recover reasonable expenses incurred in obtaining injunctive relief
8-26     or a civil penalty under this section, including investigation and
8-27     court costs, reasonable attorney's fees, witness fees, and other
 9-1     expenses.  The expenses recovered by the commissioner under this
 9-2     section may be used for the administration and enforcement of this
 9-3     chapter.  The expenses recovered by the attorney general may be
 9-4     used by the attorney general for any purpose.
 9-5           SECTION 8.  The following laws are repealed:
 9-6                 (1)  Section 146.003(c), Health and Safety Code;
 9-7                 (2)  Section 146.009, Health and Safety Code; and
 9-8                 (3)  Section 146.016(c), Health and Safety Code.
 9-9           SECTION 9.  This Act takes effect September 1, 1999.
9-10           SECTION 10.  (a)  The change in law made by this Act to
9-11     Section 146.018 applies only to an offense committed on or after
9-12     the effective date of this Act.  For the purposes of this section,
9-13     an offense is committed before the effective date of this Act if
9-14     any element of the offense occurs before that date.
9-15           (b)  An offense committed before the effective date of this
9-16     Act is covered by the law in effect when the offense was committed,
9-17     and the former law is continued in effect for that purpose.
9-18           SECTION 11.  Section 146.019, Health and Safety Code, as
9-19     amended by this Act, and Section 146.020, Health and Safety Code,
9-20     as added by this Act, apply only to conduct occurring on or after
9-21     the effective date of this Act.
9-22           SECTION 12.  The importance of this legislation and the
9-23     crowded condition of the calendars in both houses create an
9-24     emergency and an imperative public necessity that the
9-25     constitutional rule requiring bills to be read on three several
9-26     days in each house be suspended, and this rule is hereby suspended.