1-1 By: Pitts (Senate Sponsor - Brown) H.B. No. 1214
1-2 (In the Senate - Received from the House May 7, 2001;
1-3 May 7, 2001, read first time and referred to Committee on Business
1-4 and Commerce; May 11, 2001, reported favorably, as amended, by the
1-5 following vote: Yeas 6, Nays 0; May 11, 2001, sent to printer.)
1-6 COMMITTEE AMENDMENT NO. 1
1-7 Amend H.B. 1214 by striking SECTION 2 of the bill, amended Section
1-8 5(h), Article 9102, Revised Statutes (house engrossment page 1,
1-9 lines 51-63), and substituting the following:
1-10 SECTION 2. Section 5(h), Article 9102, Revised Statutes, is
1-11 amended to read as follows:
1-12 (h) The commission may also impose an administrative penalty
1-13 under Subchapter F, Chapter 51, Occupations Code [Article 9100,
1-14 Revised Statutes], on a building owner for a violation of this
1-15 article or a rule adopted under this article. Each day that the
1-16 violation is not corrected constitutes a separate violation. When
1-17 the commission considers imposing an administrative penalty under
1-18 this section, the commission shall first notify a person
1-19 responsible for the building and allow that person 90 days to bring
1-20 the building into compliance. The commission shall have the
1-21 authority to extend the 90-day period when circumstances justify
1-22 such extension.
1-23 A BILL TO BE ENTITLED
1-24 AN ACT
1-25 relating to the regulation of certain occupations by, and other
1-26 powers and duties of, the Texas Department of Licensing and
1-27 Regulation.
1-28 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-29 SECTION 1. Sections 14(a)-(c), Article 9034, Revised
1-30 Statutes, as added by Chapter 1559, Acts of the 76th Legislature,
1-31 Regular Session, 1999, are amended to read as follows:
1-32 (a) On a finding that a ground for disciplinary action
1-33 exists under one or more provisions of this article, the commission
1-34 [commissioner] may impose appropriate administrative sanctions,
1-35 including an administrative penalty as provided by Subchapter F,
1-36 Chapter 51, Occupations Code [Article 9100, Revised Statutes]. An
1-37 administrative penalty imposed under this section may not exceed
1-38 $500 per violation or $10,000 in the aggregate for all violations
1-39 of a similar nature.
1-40 (b) A disciplinary action taken under this article is
1-41 subject to Sections 51.305, 51.310, and 51.354, Occupations Code
1-42 [Section 17(d), Article 9100, Revised Statutes].
1-43 (c) The department [commissioner] may bring an action for
1-44 injunctive proceedings under Section 51.352, Occupations Code [18,
1-45 Article 9100, Revised Statutes], for a threatened or existing
1-46 violation of this article or [the commissioner's] orders or rules
1-47 adopted under this article and may also bring an action for civil
1-48 penalties as provided by that section. A civil penalty assessed
1-49 under this subsection may not exceed $2,500 per violation or
1-50 $50,000 in the aggregate for all violations of a similar nature.
1-51 SECTION 2. Section 5(h), Article 9102, Revised Statutes, is
1-52 amended to read as follows:
1-53 (h) The commission may also impose an administrative penalty
1-54 under Subchapter F, Chapter 51, Occupations Code [Article 9100,
1-55 Revised Statutes], on a building owner for a violation of this
1-56 article or a rule adopted under this article. Each day that the
1-57 violation is not corrected constitutes a separate violation. [When
1-58 the commission considers imposing an administrative penalty under
1-59 this section, the commission shall first notify a person
1-60 responsible for the building and allow that person 90 days to bring
1-61 the building into compliance. The commission shall have the
1-62 authority to extend the 90-day period when circumstances justify
1-63 such extension.]
2-1 SECTION 3. Section 6, Article 9102, Revised Statutes, is
2-2 amended to read as follows:
2-3 Sec. 6. FEES. The commission shall set and charge, in
2-4 accordance with Section 51.202, Occupations Code [Article 9100,
2-5 Revised Statutes], fees for performing its functions under this
2-6 article. [The fees shall be paid by the owner of a building when
2-7 the department performs a function related to the building under
2-8 this article. The fees must include a fee for:]
2-9 [(1) reviewing the plans or specifications of a
2-10 building;]
2-11 [(2) inspecting a building; and]
2-12 [(3) processing a request to waive or modify
2-13 accessibility standards for a building.]
2-14 SECTION 4. Section 755.030(a), Health and Safety Code, is
2-15 amended to read as follows:
2-16 (a) In addition to the fees described by Section 51.202,
2-17 Occupations Code [12(f), Article 9100, Revised Statutes], the
2-18 commission may authorize the collection of fees for:
2-19 (1) boiler inspections, including fees for special
2-20 inspections; and
2-21 (2) other activities administered by the boiler
2-22 inspection section and authorized by rule of the executive director
2-23 of the department [commissioner].
2-24 SECTION 5. Section 92.003, Labor Code, is amended to read as
2-25 follows:
2-26 Sec. 92.003. AGENCY POWERS AND DUTIES. The department[,
2-27 commissioner,] and commission shall exercise the regulatory,
2-28 administrative, and licensing authority granted under this chapter
2-29 as provided by Chapter 51, Occupations Code [Article 9100, Revised
2-30 Statutes].
2-31 SECTION 6. Section 51.001, Occupations Code, is amended to
2-32 read as follows:
2-33 Sec. 51.001. DEFINITIONS. In this chapter:
2-34 (1) "Commission" means the Texas Commission of
2-35 Licensing and Regulation.
2-36 (2) ["Commissioner" means the commissioner of
2-37 licensing and regulation.]
2-38 [(3)] "Department" means the Texas Department of
2-39 Licensing and Regulation.
2-40 (3) "License" means a license, certificate,
2-41 registration, title, or permit issued by the department.
2-42 (4) "License holder" means a person who holds a
2-43 license issued by the department.
2-44 (5) "Respondent" means a person, regardless of whether
2-45 the person is a license holder, who is charged with violating a law
2-46 establishing a regulatory program administered by the department or
2-47 a rule adopted or order issued by the commission or executive
2-48 director.
2-49 (6) "Sanction" means an action by the executive
2-50 director against a license holder or another person, including the
2-51 denial, suspension, or revocation of a license, the reprimand of a
2-52 license holder, or the placement of a license holder on probation.
2-53 SECTION 7. Section 51.051(b), Occupations Code, is amended
2-54 to read as follows:
2-55 (b) The department is governed by the commission [and the
2-56 commissioner].
2-57 SECTION 8. Section 51.053, Occupations Code, is amended by
2-58 amending Subsection (b) and adding Subsection (c) to read as
2-59 follows:
2-60 (b) A person is not eligible for appointment as a member of
2-61 the commission if the person or the person's spouse:
2-62 (1) is regulated [registered, certified, or licensed]
2-63 by the department;
2-64 (2) is employed by or participates in the management
2-65 of a business entity or other organization regulated by or
2-66 receiving funds from the department;
2-67 (3) owns or controls, directly or indirectly, more
2-68 than a 10 percent interest in a business entity or other
2-69 organization regulated by or receiving funds from the department;
3-1 [or]
3-2 (4) uses or receives a substantial amount of tangible
3-3 goods, services, or funds from the department, other than
3-4 compensation or reimbursement authorized by law for commission
3-5 membership, attendance, or expenses;
3-6 (5) is an officer, employee, or paid consultant of a
3-7 trade association in a field regulated by the department;
3-8 (6) is an employee of the department; or
3-9 (7) is required to register as a lobbyist under
3-10 Chapter 305, Government Code, because of the person's activities
3-11 for compensation on behalf of a profession related to the operation
3-12 of the commission or department.
3-13 (c) In this section, "trade association" means a nonprofit,
3-14 cooperative, and voluntarily joined association of business or
3-15 professional competitors in this state designed to assist its
3-16 members and its industry or profession in dealing with mutual
3-17 business or professional problems and in promoting their common
3-18 interest.
3-19 SECTION 9. Section 51.056(b), Occupations Code, is amended
3-20 to read as follows:
3-21 (b) The presiding officer may vote on all matters before the
3-22 commission as provided by Robert's Rules of Order.
3-23 SECTION 10. Sections 51.057(a) and (c), Occupations Code,
3-24 are amended to read as follows:
3-25 (a) It is a ground for removal from the commission that a
3-26 member:
3-27 (1) does not have at the time of appointment the
3-28 qualifications required for appointment to the commission;
3-29 (2) does not maintain during service on the commission
3-30 the qualifications required for appointment to the commission;
3-31 (3) violates a prohibition established by Section
3-32 51.053 [51.054]; or
3-33 (4) [cannot, because of illness or disability,
3-34 discharge the member's duties for a substantial part of the
3-35 member's term; or]
3-36 [(5)] is absent from more than half of the regularly
3-37 scheduled commission meetings that the member is eligible to attend
3-38 during a calendar year unless the absence is excused by majority
3-39 vote of the commission.
3-40 (c) If a commission member or the executive director
3-41 [commissioner] has knowledge that a potential ground for removal
3-42 exists, the member or executive director [commissioner] shall
3-43 notify the presiding officer of the commission of the ground. The
3-44 presiding officer shall then notify the governor that a potential
3-45 ground for removal exists.
3-46 SECTION 11. Section 51.059(a), Occupations Code, is amended
3-47 to read as follows:
3-48 (a) The commission shall meet at least once in each quarter
3-49 of the fiscal [calendar] year.
3-50 SECTION 12. The heading to Subchapter C, Chapter 51,
3-51 Occupations Code, is amended to read as follows:
3-52 SUBCHAPTER C. EXECUTIVE DIRECTOR [COMMISSIONER]
3-53 AND OTHER DEPARTMENT PERSONNEL
3-54 SECTION 13. Section 51.101, Occupations Code, is amended to
3-55 read as follows:
3-56 Sec. 51.101. EXECUTIVE DIRECTOR [COMMISSIONER]. The
3-57 commission shall appoint the [commissioner who serves as] executive
3-58 director of the department. The executive director serves at the
3-59 will of the commission.
3-60 SECTION 14. Section 51.103, Occupations Code, is amended to
3-61 read as follows:
3-62 Sec. 51.103. EXECUTIVE DIRECTOR [COMMISSIONER] POWERS AND
3-63 DUTIES. (a) The executive director [commissioner] shall:
3-64 (1) perform any duties assigned by the commission and
3-65 other duties [or] specified by law;
3-66 (2) administer and enforce the department's programs;
3-67 and
3-68 (3) issue licenses[, registrations, certificates, and
3-69 permits] authorized by the laws establishing programs regulated by
4-1 the department [department's programs and prescribe necessary
4-2 forms].
4-3 (b) The executive director may delegate any power or duty
4-4 assigned to the executive director unless prohibited by statute or
4-5 rule.
4-6 (c) The executive director may:
4-7 (1) impose sanctions and issue orders relating to a
4-8 sanction as provided by Section 51.353; and
4-9 (2) assess an administrative penalty or issue an order
4-10 relating to an administrative penalty as authorized by a law
4-11 establishing a program regulated by the department or as provided
4-12 by Sections 51.301 and 51.302.
4-13 SECTION 15. Section 51.104, Occupations Code, is amended to
4-14 read as follows:
4-15 Sec. 51.104. PERSONNEL. [(a)] The executive director
4-16 [commissioner] may employ persons to perform the department's work
4-17 and may prescribe their duties and compensation, subject to the
4-18 personnel policies adopted by the commission and the commission's
4-19 approval of the budget.
4-20 [(b) Subject to the commission's personnel policies, the
4-21 commissioner may remove any department employee.]
4-22 SECTION 16. Section 51.105, Occupations Code, is amended to
4-23 read as follows:
4-24 Sec. 51.105. DIVISION OF RESPONSIBILITIES. The commission
4-25 shall develop and implement policies that clearly define the
4-26 respective responsibilities of the commission, the executive
4-27 director [commissioner], and the staff of the department.
4-28 SECTION 17. Section 51.107, Occupations Code, is amended to
4-29 read as follows:
4-30 Sec. 51.107. CAREER LADDER PROGRAM; PERFORMANCE EVALUATIONS.
4-31 (a) The executive director [commissioner or the commissioner's
4-32 designee] shall develop a [an intra-agency] career ladder program.
4-33 The program must require intra-agency postings of all nonentry
4-34 level positions concurrently with any public posting. [The program
4-35 may not penalize or otherwise adversely affect an employee who
4-36 chooses not to move from one office location to another.]
4-37 (b) The executive director [commissioner or the
4-38 commissioner's designee] shall develop a system of employee
4-39 [annual] performance evaluations. The system must require that
4-40 evaluations be conducted at least annually. All merit pay for
4-41 department employees must be based on the system established under
4-42 this subsection.
4-43 SECTION 18. Section 51.108, Occupations Code, is amended to
4-44 read as follows:
4-45 Sec. 51.108. EQUAL EMPLOYMENT OPPORTUNITY POLICY[; REPORT].
4-46 (a) The executive director [commissioner or the commissioner's
4-47 designee] shall prepare and maintain a written policy statement to
4-48 assure implementation of an equal employment opportunity program
4-49 under which all personnel transactions are made without regard to
4-50 race, color, disability, sex, religion, age, or national origin.
4-51 The policy statement must include:
4-52 (1) [personnel policies, including] policies related
4-53 to recruitment, evaluation, selection, appointment, training, and
4-54 promotion of personnel;
4-55 (2) a comprehensive analysis of the department
4-56 workforce that meets federal and state guidelines;
4-57 (3) procedures by which a determination can be made of
4-58 significant underuse in the department workforce of all persons for
4-59 whom federal or state guidelines encourage a more equitable
4-60 balance; and
4-61 (4) reasonable methods to appropriately address those
4-62 areas of significant underuse.
4-63 (b) A policy statement prepared under Subsection (a) must
4-64 cover an annual period, be updated at least annually, and be filed
4-65 with the governor.
4-66 [(c) The governor shall deliver a biennial report to the
4-67 legislature based on the information received under Subsection (b).
4-68 The report may be made separately or as a part of other biennial
4-69 reports made to the legislature.]
5-1 SECTION 19. Section 51.201, Occupations Code, is amended to
5-2 read as follows:
5-3 Sec. 51.201. GENERAL POWERS AND DUTIES OF COMMISSION. (a)
5-4 The commission shall:
5-5 (1) supervise the executive director's
5-6 [commissioner's] administration of the department;
5-7 (2) formulate the policy objectives for the
5-8 department; and
5-9 (3) approve the department's operating budget and the
5-10 department's requests for legislative appropriations.
5-11 (b) The commission:
5-12 (1) may adopt rules as necessary for its own
5-13 procedures; and
5-14 (2) shall adopt rules as necessary to implement this
5-15 chapter.
5-16 SECTION 20. Section 51.202, Occupations Code, is amended to
5-17 read as follows:
5-18 Sec. 51.202. FEES. (a) The commission shall set fees, in
5-19 amounts reasonable and necessary to cover the costs of
5-20 administering the programs or activities, for:
5-21 (1) licenses[, registrations, certificates, titles,
5-22 and permits] issued by the department [commissioner];
5-23 (2) license[, registration, certificate, title, and
5-24 permit] renewals and late renewals;
5-25 (3) examinations; and
5-26 (4) any other program or activity administered by the
5-27 department for which a fee is authorized.
5-28 (b) The executive director [commissioner] by rule may
5-29 provide for prorating [the] fees [set by the commission] for the
5-30 [initial] issuance of a license[, registration, certificate, or
5-31 permit], so that a person regulated by the department pays only
5-32 that portion of the applicable fee that is allocable to the number
5-33 of months during which the license[, registration, certificate, or
5-34 permit] is valid.
5-35 (c) The executive director [commissioner] shall develop cost
5-36 management procedures that enable the commission to determine with
5-37 reasonable accuracy the cost to the department of each program and
5-38 activity for which a fee is charged.
5-39 SECTION 21. Section 51.203, Occupations Code, is amended to
5-40 read as follows:
5-41 Sec. 51.203. RULES ADOPTED BY EXECUTIVE DIRECTOR. The
5-42 executive director [commissioner] shall adopt rules as necessary to
5-43 implement each [this chapter and any other] law establishing a
5-44 program regulated by the department.
5-45 SECTION 22. Section 51.204, Occupations Code, is amended to
5-46 read as follows:
5-47 Sec. 51.204. RULES RESTRICTING ADVERTISING OR COMPETITIVE
5-48 BIDDING. (a) The executive director [commissioner] may not adopt
5-49 rules restricting advertising or competitive bidding by a license
5-50 holder [person regulated by the department] except to prohibit
5-51 false, misleading, or deceptive practices [by that person].
5-52 (b) The executive director [commissioner] may not include in
5-53 rules to prohibit false, misleading, or deceptive practices by a
5-54 license holder [person regulated by the department] a rule that:
5-55 (1) restricts the use of any advertising medium;
5-56 (2) restricts the license holder's [person's] personal
5-57 appearance or the use of the license holder's [person's] voice in
5-58 an advertisement;
5-59 (3) relates to the size or duration of an
5-60 advertisement [used by the person]; or
5-61 (4) restricts the use of a trade name in advertising
5-62 [by the person].
5-63 SECTION 23. Section 51.205, Occupations Code, is amended to
5-64 read as follows:
5-65 Sec. 51.205. LICENSE EXPIRATION AND RENEWAL. (a) The
5-66 executive director [commission] may adopt a system under which
5-67 licenses[, registrations, certificates, or permits] expire annually
5-68 [on various dates during the year] and may provide for a renewal
5-69 period that exceeds 12 months.
6-1 (b) The executive director [commission] shall notify a
6-2 person regulated by the department of the impending expiration of
6-3 the person's license[, registration, certificate, or permit].
6-4 SECTION 24. Section 51.251(a), Occupations Code, is amended
6-5 to read as follows:
6-6 (a) The department shall prepare information of public
6-7 interest describing the functions of the commission and department
6-8 and the procedures by which complaints are filed with and resolved
6-9 by the commission or executive director [department].
6-10 SECTION 25. Section 51.252, Occupations Code, is amended to
6-11 read as follows:
6-12 Sec. 51.252. COMPLAINTS. (a) The executive director
6-13 [commissioner by rule] shall establish methods by which consumers
6-14 and service recipients are notified of the name, mailing address,
6-15 and telephone number of the department for the purpose of directing
6-16 complaints to the department. [The department may provide for that
6-17 notice:]
6-18 [(1) on each registration form, application, or
6-19 written contract for services of a person regulated by the
6-20 department;]
6-21 [(2) on a sign prominently displayed in the place of
6-22 business of each person regulated by the department; or]
6-23 [(3) in a bill for service provided by a person
6-24 regulated by the department.]
6-25 (b) The department shall keep an information file about each
6-26 complaint filed with the [commission or] department that the
6-27 commission or executive director [department] has authority to
6-28 resolve.
6-29 (c) If a written complaint is filed that [with] the
6-30 commission or executive director [department that the commission or
6-31 department] has authority to resolve, the department, at least
6-32 quarterly and until final disposition of the complaint, shall
6-33 notify the parties to the complaint of the status of the complaint
6-34 unless the notice would jeopardize an [undercover] investigation.
6-35 SECTION 26. Section 51.301, Occupations Code, is amended to
6-36 read as follows:
6-37 Sec. 51.301. IMPOSITION OF PENALTY. The executive director
6-38 or [In addition to or in lieu of a sanction imposed on a person
6-39 under Section 51.353, the] commission may impose an administrative
6-40 penalty against a person who violates:
6-41 (1) a law establishing a regulatory program
6-42 administered by the department; or
6-43 (2) a rule adopted or order issued by the executive
6-44 director or commission [on the person].
6-45 SECTION 27. Section 51.302, Occupations Code, is amended to
6-46 read as follows:
6-47 Sec. 51.302. AMOUNT OF PENALTY. (a) If the relevant law
6-48 establishing a program regulated by the department does not state
6-49 the maximum amount of an administrative penalty under that law, the
6-50 amount of the penalty shall be assessed by the commission or
6-51 executive director in an amount that [The amount of the
6-52 administrative penalty] may not exceed $5,000 per day [$1,000] for
6-53 each violation. Each day a violation continues or occurs is a
6-54 separate violation for purposes of imposing a penalty.
6-55 (b) The amount of the penalty shall be based on:
6-56 (1) the seriousness of the violation;
6-57 (2) the respondent's history of previous violations;
6-58 (3) the amount necessary to deter a future violation;
6-59 (4) efforts made by the respondent to correct the
6-60 violation; and
6-61 (5) any other matter that justice may require.
6-62 SECTION 28. Subchapter F, Chapter 51, Occupations Code, is
6-63 amended by adding Section 51.3025 to read as follows:
6-64 Sec. 51.3025. IMPOSITION OF SANCTION. A proceeding under
6-65 this subchapter imposing an administrative penalty may be combined
6-66 with a proceeding to impose an administrative sanction. If a
6-67 sanction is imposed in a proceeding under this subchapter, the
6-68 requirements of this subchapter apply to the imposition of the
6-69 sanction.
7-1 SECTION 29. Section 51.303, Occupations Code, is amended to
7-2 read as follows:
7-3 Sec. 51.303. [REPORT AND] NOTICE OF VIOLATION AND PENALTY.
7-4 [(a)] If, after investigation of a possible violation and the
7-5 facts surrounding the possible violation, the department
7-6 [commissioner] determines that a violation occurred, the department
7-7 [commissioner] shall issue to the respondent a notice of alleged
7-8 violation [preliminary report] stating:
7-9 (1) [the facts on which the determination is based;
7-10 and]
7-11 [(2) the commissioner's recommendation on the
7-12 imposition of the administrative penalty, including a
7-13 recommendation on the amount of the penalty.]
7-14 [(b) Not later than the 14th day after the date the
7-15 preliminary report is issued, the commissioner shall give written
7-16 notice of the violation to the person on whom the penalty may be
7-17 imposed.]
7-18 [(c) The notice issued under this section must:]
7-19 [(1) include] a brief summary of the alleged
7-20 violation;
7-21 (2) [state] the amount of the recommended
7-22 administrative penalty; and
7-23 (3) that [inform] the respondent has [person of] the
7-24 [person's] right to a hearing to contest the alleged [on the
7-25 occurrence of the] violation, the amount of the penalty, or both.
7-26 SECTION 30. Section 51.304, Occupations Code, is amended to
7-27 read as follows:
7-28 Sec. 51.304. PENALTY TO BE PAID OR HEARING REQUESTED. (a)
7-29 Not later than the 20th day after the date the respondent [person]
7-30 receives the notice, the respondent [person] may:
7-31 (1) accept the department's [commissioner's]
7-32 determination and recommended administrative penalty; or
7-33 (2) make a written request for a hearing on that
7-34 determination.
7-35 (b) If the respondent [person] accepts the department's
7-36 [commissioner's] determination, the executive director [commission]
7-37 by order shall approve the determination and require the person to
7-38 pay the recommended penalty.
7-39 SECTION 31. Sections 51.305(a) and (b), Occupations Code, are
7-40 amended to read as follows:
7-41 (a) If the respondent [person] requests a hearing [or fails
7-42 to respond in a timely manner to the notice], the department
7-43 [commissioner] shall set a hearing and give written notice of the
7-44 hearing to the respondent [person].
7-45 (b) The executive director [commissioner] may employ a
7-46 hearings officer to conduct the hearing [for this purpose].
7-47 SECTION 32. Section 51.306, Occupations Code, is amended by
7-48 amending Subsection (b) and adding Subsection (c) to read as
7-49 follows:
7-50 (b) The department [commissioner] shall give notice of the
7-51 [commission's] order to the respondent [person].
7-52 (c) The order under this section [notice] must include:
7-53 (1) separate statements of the findings of fact and
7-54 conclusions of law;
7-55 (2) the amount of any penalty imposed;
7-56 (3) a statement of the right of the respondent
7-57 [person] to judicial review of the [commission's] order; and
7-58 (4) any other information required by law.
7-59 SECTION 33. Section 51.307, Occupations Code, is amended to
7-60 read as follows:
7-61 Sec. 51.307. OPTIONS FOLLOWING DECISION: PAY OR APPEAL. (a)
7-62 Not later than the 30th day after the date the commission's order
7-63 becomes final, the respondent [person] shall:
7-64 (1) pay the penalty; or
7-65 (2) file a petition for judicial review contesting the
7-66 order [fact of the violation, the amount of the penalty, or both,]
7-67 and:
7-68 (A) forward the penalty [amount imposed] to the
7-69 department for deposit in an escrow account; or
8-1 (B) give the department a supersedeas bond in a
8-2 form approved by the executive director [commissioner] that:
8-3 (i) is for the amount of the penalty; and
8-4 (ii) is effective until judicial review of
8-5 the decision is final.
8-6 (b) A respondent [person] who is financially unable to
8-7 comply with Subsection (a)(2) is entitled to judicial review if the
8-8 respondent [person] files with the court, as part of the
8-9 respondent's [person's] petition for judicial review, a sworn
8-10 statement that the respondent [person] is unable to meet the
8-11 requirements of that subsection.
8-12 SECTION 34. Section 51.309, Occupations Code, is amended to
8-13 read as follows:
8-14 Sec. 51.309. REMITTANCE OF PENALTY AND INTEREST. (a) If,
8-15 after judicial review, the administrative penalty is reduced or not
8-16 imposed, the executive director [commissioner] shall:
8-17 (1) remit to the person the appropriate amount, plus
8-18 accrued interest, if the person paid the amount of the penalty; or
8-19 (2) execute a release of the bond, if the person
8-20 posted a supersedeas bond.
8-21 (b) The interest paid under Subsection (a)(1) is accrued at
8-22 the rate charged on loans to depository institutions by the New
8-23 York Federal Reserve Bank. The interest shall be paid for the
8-24 period beginning on the date the penalty is paid to the department
8-25 [commissioner] and ending on the date the penalty is remitted.
8-26 SECTION 35. Section 51.310(a), Occupations Code, is amended
8-27 to read as follows:
8-28 (a) The executive director [commissioner] by rule shall
8-29 prescribe procedures for the determination and appeal of a decision
8-30 to impose an administrative penalty.
8-31 SECTION 36. Section 51.351(b), Occupations Code, is amended
8-32 to read as follows:
8-33 (b) The department, during reasonable business hours, may:
8-34 (1) enter the business premises of a person regulated
8-35 by the department or a person suspected of being in violation of or
8-36 threatening to violate a law establishing a regulatory program
8-37 administered by the department or a rule or order of the commission
8-38 or executive director [commissioner] related to a regulatory
8-39 program administered by the department; and
8-40 (2) examine and copy records pertinent to the
8-41 inspection or investigation.
8-42 SECTION 37. Section 51.352, Occupations Code, is amended to
8-43 read as follows:
8-44 Sec. 51.352. INJUNCTIVE RELIEF; CIVIL PENALTY. (a) The
8-45 attorney general or the executive director [commissioner] may
8-46 institute an action for injunctive relief to restrain a violation
8-47 by and to collect a civil penalty from a person that appears to be
8-48 in violation of or threatening to violate a law establishing a
8-49 regulatory program administered by the department or a rule or
8-50 order of the commission or executive director [commissioner]
8-51 related to the regulatory program.
8-52 (b) [The amount of a civil penalty may not exceed $1,000 for
8-53 each violation or $250,000 in the aggregate.]
8-54 [(c)] An action filed under this section must be filed in a
8-55 district court in Travis County.
8-56 (c) [(d)] The attorney general and the department may
8-57 recover reasonable expenses incurred in obtaining injunctive relief
8-58 under this section, including court costs, reasonable attorney's
8-59 fees, investigative costs, witness fees, and deposition expenses.
8-60 SECTION 38. Section 51.353, Occupations Code, is amended to
8-61 read as follows:
8-62 Sec. 51.353. ADMINISTRATIVE SANCTIONS. (a) The executive
8-63 director [commissioner] shall adopt rules relating to
8-64 administrative sanctions that may be enforced against a license
8-65 holder [person] regulated by the department. If a license holder
8-66 [person] violates a law establishing a regulatory program
8-67 administered by the department or a rule or order of the commission
8-68 or executive director [commissioner relating to the program], the
8-69 executive director [commissioner] may:
9-1 (1) issue a written reprimand to the license holder
9-2 [person that specifies the violation];
9-3 (2) revoke or suspend the license holder's [person's]
9-4 license[, registration, certificate, or permit]; or
9-5 (3) place the license holder [person] on probation if
9-6 the person's license[, registration, certificate, or permit] has
9-7 been suspended.
9-8 (b) If a suspension is probated, the executive director
9-9 [commissioner] may require the license holder [person] to:
9-10 (1) report regularly to the department [commissioner]
9-11 on matters that are the basis of the probation;
9-12 (2) limit practice to the areas prescribed by the
9-13 executive director [commissioner]; or
9-14 (3) continue or renew professional education in those
9-15 areas that are the basis for the probation until the license holder
9-16 [person] attains a degree of skill satisfactory to the executive
9-17 director [commissioner].
9-18 SECTION 39. Section 51.354, Occupations Code, is amended to
9-19 read as follows:
9-20 Sec. 51.354. RIGHT TO HEARING; ADMINISTRATIVE PROCEDURE. (a)
9-21 A respondent [person] is entitled to a hearing if the executive
9-22 director [commissioner] proposes to deny, suspend, or revoke a
9-23 license[, registration, certificate, or permit].
9-24 (b) The executive director [commissioner] may employ a
9-25 hearings officer to conduct the hearing [for this purpose].
9-26 (c) The executive director [commissioner] by rule shall
9-27 prescribe procedures for the determination and appeal of a decision
9-28 to deny, suspend, or revoke a license[, registration, certificate,
9-29 or permit].
9-30 (d) A proceeding under this chapter to deny, suspend, or
9-31 revoke a license[, registration, certificate, or permit] is
9-32 considered to be a contested case under Chapter 2001, Government
9-33 Code.
9-34 SECTION 40. Sections 51.054, 51.102, 51.106, and 51.206,
9-35 Occupations Code, are repealed.
9-36 SECTION 41. (a) The change in law made by this Act applies
9-37 only to a proceeding to impose an administrative penalty or
9-38 administrative sanction that is commenced by the Texas Department
9-39 of Licensing and Regulation on or after the effective date of this
9-40 Act. A proceeding commenced before the effective date of this Act
9-41 is governed by the law in effect on the date the proceeding was
9-42 commenced, and the former law is continued in effect for that
9-43 purpose.
9-44 (b) A reference in any other law to the commissioner of
9-45 licensing and regulation means the executive director of the Texas
9-46 Department of Licensing and Regulation.
9-47 SECTION 42. This Act takes effect immediately if it receives
9-48 a vote of two-thirds of all the members elected to each house, as
9-49 provided by Section 39, Article III, Texas Constitution. If this
9-50 Act does not receive the vote necessary for immediate effect, this
9-51 Act takes effect September 1, 2001.
9-52 * * * * *