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                                  * * * * *