By: Nelson S.B. No. 791
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the imposition of administrative, civil, and criminal
1-3 penalties and the authorization of emergency license suspension for
1-4 certain licensing programs regulated by the Texas Department of
1-5 Health.
1-6 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-7 SECTION 1. Subchapter I, Chapter 203, Occupations Code, is
1-8 amended by adding Section 203.405 to read as follows:
1-9 Sec. 203.405. EMERGENCY SUSPENSION. (a) The board or a
1-10 three-member committee of board members designated by the board
1-11 shall temporarily suspend the letter of documentation of a
1-12 documented midwife if the board or committee determines from the
1-13 evidence or information presented to it that continued practice by
1-14 the documented midwife would constitute a continuing and imminent
1-15 threat to the public welfare.
1-16 (b) A letter of documentation may be suspended under this
1-17 section without notice or hearing on the complaint if:
1-18 (1) action is taken to initiate proceedings for a
1-19 hearing before the State Office of Administrative Hearings
1-20 simultaneously with the temporary suspension; and
1-21 (2) a hearing is held as soon as practicable under
1-22 this chapter and Chapter 2001, Government Code.
1-23 (c) The State Office of Administrative Hearings shall hold a
1-24 preliminary hearing not later than the 14th day after the date of
1-25 the temporary suspension to determine if there is probable cause to
2-1 believe that a continuing and imminent threat to the public welfare
2-2 still exists. A final hearing on the matter shall be held not
2-3 later than the 61st day after the date of the temporary suspension.
2-4 SECTION 2. Subchapter F, Chapter 352, Occupations Code, is
2-5 amended by adding Section 352.254 to read as follows:
2-6 Sec. 352.254. EMERGENCY SUSPENSION. (a) The board or a
2-7 three-member committee of board members designated by the board
2-8 shall temporarily suspend the certificate of registration of a
2-9 certificate holder if the board or committee determines from the
2-10 evidence or information presented to it that continued practice by
2-11 the certificate holder would constitute a continuing and imminent
2-12 threat to the public welfare.
2-13 (b) A certificate of registration may be suspended under
2-14 this section without notice or hearing on the complaint if:
2-15 (1) action is taken to initiate proceedings for a
2-16 hearing before the State Office of Administrative Hearings
2-17 simultaneously with the temporary suspension; and
2-18 (2) a hearing is held as soon as practicable under
2-19 this chapter and Chapter 2001, Government Code.
2-20 (c) The State Office of Administrative Hearings shall hold a
2-21 preliminary hearing not later than the 14th day after the date of
2-22 the temporary suspension to determine if there is probable cause to
2-23 believe that a continuing and imminent threat to the public welfare
2-24 still exists. A final hearing on the matter shall be held not
2-25 later than the 61st day after the date of the temporary suspension.
2-26 SECTION 3. Subchapter E, Chapter 353, Occupations Code, is
3-1 amended by adding Section 353.2025 to read as follows:
3-2 Sec. 353.2025. EMERGENCY SUSPENSION. (a) The board or a
3-3 three-member committee of board members designated by the board
3-4 shall temporarily suspend the permit of a permit holder if the
3-5 board or committee determines from the evidence or information
3-6 presented to it that continued practice by the permit holder would
3-7 constitute a continuing and imminent threat to the public welfare.
3-8 (b) A permit may be suspended under this section without
3-9 notice or hearing on the complaint if:
3-10 (1) action is taken to initiate proceedings for a
3-11 hearing before the State Office of Administrative Hearings
3-12 simultaneously with the temporary suspension; and
3-13 (2) a hearing is held as soon as practicable under
3-14 this chapter and Chapter 2001, Government Code.
3-15 (c) The State Office of Administrative Hearings shall hold a
3-16 preliminary hearing not later than the 14th day after the date of
3-17 the temporary suspension to determine if there is probable cause to
3-18 believe that a continuing and imminent threat to the public welfare
3-19 still exists. A final hearing on the matter shall be held not
3-20 later than the 61st day after the date of the temporary suspension.
3-21 SECTION 4. Subchapter J, Chapter 401, Occupations Code, is
3-22 amended by adding Section 401.460 to read as follows:
3-23 Sec. 401.460. EMERGENCY SUSPENSION. (a) The board or a
3-24 three-member committee of board members designated by the board
3-25 shall temporarily suspend the license of a license holder if the
3-26 board or committee determines from the evidence or information
4-1 presented to it that continued practice by the license holder would
4-2 constitute a continuing and imminent threat to the public welfare.
4-3 (b) A license may be suspended under this section without
4-4 notice or hearing on the complaint if:
4-5 (1) action is taken to initiate proceedings for a
4-6 hearing before the State Office of Administrative Hearings
4-7 simultaneously with the temporary suspension; and
4-8 (2) a hearing is held as soon as practicable under
4-9 this chapter and Chapter 2001, Government Code.
4-10 (c) The State Office of Administrative Hearings shall hold a
4-11 preliminary hearing not later than the 14th day after the date of
4-12 the temporary suspension to determine if there is probable cause to
4-13 believe that a continuing and imminent threat to the public welfare
4-14 still exists. A final hearing on the matter shall be held not
4-15 later than the 61st day after the date of the temporary suspension.
4-16 SECTION 5. Chapter 401, Occupations Code, is amended by
4-17 adding Subchapter L to read as follows:
4-18 SUBCHAPTER L. ADMINISTRATIVE PENALTY
4-19 Sec. 401.551. IMPOSITION OF ADMINISTRATIVE PENALTY. The
4-20 board may impose an administrative penalty on a person licensed
4-21 under this chapter who violates this chapter or a rule or order
4-22 adopted under this chapter.
4-23 Sec. 401.552. AMOUNT OF ADMINISTRATIVE PENALTY. (a) The
4-24 amount of the administrative penalty may not be less than $50 or
4-25 more than $500 for each violation. Each day a violation continues
4-26 or occurs is a separate violation for the purpose of imposing a
5-1 penalty.
5-2 (b) The amount shall be based on:
5-3 (1) the seriousness of the violation, including the
5-4 nature, circumstances, extent, and gravity of the violation;
5-5 (2) the economic harm caused by the violation;
5-6 (3) the history of previous violations;
5-7 (4) the amount necessary to deter a future violation;
5-8 (5) efforts to correct the violation; and
5-9 (6) any other matter that justice may require.
5-10 Sec. 401.553. REPORT AND NOTICE OF VIOLATION AND PENALTY.
5-11 (a) If the commissioner of public health determines that a
5-12 violation occurred, the commissioner may issue to the board a
5-13 report stating:
5-14 (1) the facts on which the determination is based; and
5-15 (2) the commissioner's recommendation on the
5-16 imposition of an administrative penalty, including a recommendation
5-17 on the amount of the penalty.
5-18 (b) Within 14 days after the date the report is issued, the
5-19 commissioner of public health shall give written notice of the
5-20 report to the person. The notice must:
5-21 (1) include a brief summary of the alleged violation;
5-22 (2) state the amount of the recommended administrative
5-23 penalty; and
5-24 (3) inform the person of the person's right to a
5-25 hearing on the occurrence of the violation, the amount of the
5-26 penalty, or both.
6-1 Sec. 401.554. PENALTY TO BE PAID OR HEARING REQUESTED. (a)
6-2 Within 10 days after the date the person receives the notice, the
6-3 person in writing may:
6-4 (1) accept the determination and recommended
6-5 administrative penalty of the commissioner of public health; or
6-6 (2) make a request for a hearing on the occurrence of
6-7 the violation, the amount of the penalty, or both.
6-8 (b) If the person accepts the determination and recommended
6-9 penalty of the commissioner of public health, the board by order
6-10 shall approve the determination and impose the recommended penalty.
6-11 Sec. 401.555. HEARING. (a) If the person requests a
6-12 hearing or fails to respond in a timely manner to the notice, the
6-13 commissioner of public health shall set a hearing and give written
6-14 notice of the hearing to the person.
6-15 (b) An administrative law judge of the State Office of
6-16 Administrative Hearings shall hold the hearing.
6-17 (c) The administrative law judge shall make findings of fact
6-18 and conclusions of law and promptly issue to the board a proposal
6-19 for a decision about the occurrence of the violation and the amount
6-20 of a proposed administrative penalty.
6-21 Sec. 401.556. DECISION BY BOARD. (a) Based on the findings
6-22 of fact, conclusions of law, and proposal for decision, the board
6-23 by order may determine that:
6-24 (1) a violation occurred and impose an administrative
6-25 penalty; or
6-26 (2) a violation did not occur.
7-1 (b) The notice of the board's order given to the person must
7-2 include a statement of the right of the person to judicial review
7-3 of the order.
7-4 Sec. 401.557. OPTIONS FOLLOWING DECISION: PAY OR APPEAL.
7-5 (a) days after the date the board's order becomes final, the
7-6 person shall:
7-7 (1) pay the administrative penalty; or
7-8 (2) file a petition for judicial review contesting the
7-9 occurrence of the violation, the amount of the penalty, or both.
7-10 (b) Within the 30-day period prescribed by Subsection (a), a
7-11 person who files a petition for judicial review may:
7-12 (1) stay enforcement of the penalty by:
7-13 (A) paying the penalty to the court for
7-14 placement in an escrow account; or
7-15 (B) giving the court a supersedeas bond approved
7-16 by the court that:
7-17 (i) is for the amount of the penalty; and
7-18 (ii) is effective until all judicial
7-19 review of the board's order is final; or
7-20 (2) request the court to stay enforcement of the
7-21 penalty by:
7-22 (A) filing with the court a sworn affidavit of
7-23 the person stating that the person is financially unable to pay the
7-24 penalty and is financially unable to give the supersedeas bond; and
7-25 (B) giving a copy of the affidavit to the
7-26 commissioner of public health by certified mail.
8-1 (c) If the commissioner of public health receives a copy of
8-2 an affidavit under Subsection (b)(2), the commissioner may file
8-3 with the court, within five days after the date the copy is
8-4 received, a contest to the affidavit.
8-5 (d) The court shall hold a hearing on the facts alleged in
8-6 the affidavit as soon as practicable and shall stay the enforcement
8-7 of the penalty on finding that the alleged facts are true. The
8-8 person who files an affidavit has the burden of proving that the
8-9 person is financially unable to pay the penalty and to give a
8-10 supersedeas bond.
8-11 Sec. 401.558. COLLECTION OF PENALTY. (a) If the person
8-12 does not pay the administrative penalty and the enforcement of the
8-13 penalty is not stayed, the penalty may be collected.
8-14 (b) The attorney general may sue to collect the penalty.
8-15 Sec. 401.559. DETERMINATION BY COURT. (a) If the court
8-16 sustains the determination that a violation occurred, the court may
8-17 uphold or reduce the amount of the administrative penalty and order
8-18 the person to pay the full or reduced amount of the penalty.
8-19 (b) If the court does not sustain the finding that a
8-20 violation occurred, the court shall order that a penalty is not
8-21 owed.
8-22 Sec. 401.560. REMITTANCE OF PENALTY AND INTEREST. (a) If
8-23 the person paid the administrative penalty and if the amount of the
8-24 penalty is reduced or the penalty is not upheld by the court, the
8-25 court shall order, when the court's judgment becomes final, that
8-26 the appropriate amount plus accrued interest be remitted to the
9-1 person.
9-2 (b) The interest accrues at the rate charged on loans to
9-3 depository institutions by the New York Federal Reserve Bank.
9-4 (c) The interest shall be paid for the period beginning on
9-5 the date the penalty is paid and ending on the date the penalty is
9-6 remitted.
9-7 (d) If the person gave a supersedeas bond and the penalty is
9-8 not upheld by the court, the court shall order, when the court's
9-9 judgment becomes final, the release of the bond.
9-10 (e) If the person gave a supersedeas bond and the amount of
9-11 the penalty is reduced, the court shall order the release of the
9-12 bond after the person pays the reduced amount.
9-13 Sec. 401.561. ADMINISTRATIVE PROCEDURE. A proceeding under
9-14 this subchapter is a contested case under Chapter 2001, Government
9-15 Code.
9-16 SECTION 6. Subchapter K, Chapter 402, Occupations Code, is
9-17 amended by adding Section 402.504 to read as follows:
9-18 Sec. 402.504. EMERGENCY SUSPENSION. (a) The board or a
9-19 three-member committee of board members designated by the board
9-20 shall temporarily suspend the license or permit of a license or
9-21 permit holder if the board or committee determines from the
9-22 evidence or information presented to it that continued practice by
9-23 the license or permit holder would constitute a continuing and
9-24 imminent threat to the public welfare.
9-25 (b) A license or permit may be suspended under this section
9-26 without notice or hearing on the complaint if:
10-1 (1) action is taken to initiate proceedings for a
10-2 hearing before the State Office of Administrative Hearings
10-3 simultaneously with the temporary suspension; and
10-4 (2) a hearing is held as soon as practicable under
10-5 this chapter and Chapter 2001, Government Code.
10-6 (c) The State Office of Administrative Hearings shall hold a
10-7 preliminary hearing not later than the 14th day after the date of
10-8 the temporary suspension to determine if there is probable cause to
10-9 believe that a continuing and imminent threat to the public welfare
10-10 still exists. A final hearing on the matter shall be held not
10-11 later than the 61st day after the date of the temporary suspension.
10-12 SECTION 7. Subchapter L, Chapter 402, Occupations Code, is
10-13 amended by adding Section 402.553 to read as follows:
10-14 Sec. 402.553. CIVIL PENALTY. (a) A person who violates
10-15 this chapter or a rule or order adopted by the board under this
10-16 chapter is liable for a civil penalty not to exceed $1,000 a day.
10-17 (b) At the request of the board or department, the attorney
10-18 general shall bring an action to recover a civil penalty authorized
10-19 under this section.
10-20 SECTION 8. Subchapter F, Chapter 451, Occupations Code, is
10-21 amended by adding Section 451.255 to read as follows:
10-22 Sec. 451.255. EMERGENCY SUSPENSION. (a) The board or a
10-23 three-member committee of board members designated by the board
10-24 shall temporarily suspend the license of a license holder if the
10-25 board or committee determines from the evidence or information
10-26 presented to it that continued practice by the license holder would
11-1 constitute a continuing and imminent threat to the public welfare.
11-2 (b) A license may be suspended under this section without
11-3 notice or hearing on the complaint if:
11-4 (1) action is taken to initiate proceedings for a
11-5 hearing before the State Office of Administrative Hearings
11-6 simultaneously with the temporary suspension; and
11-7 (2) a hearing is held as soon as practicable under
11-8 this chapter and Chapter 2001, Government Code.
11-9 (c) The State Office of Administrative Hearings shall hold a
11-10 preliminary hearing not later than the 14th day after the date of
11-11 the temporary suspension to determine if there is probable cause to
11-12 believe that a continuing and imminent threat to the public welfare
11-13 still exists. A final hearing on the matter shall be held not
11-14 later than the 61st day after the date of the temporary suspension.
11-15 SECTION 9. Subchapter F, Chapter 455, Occupations Code, is
11-16 amended by adding Section 455.254 to read as follows:
11-17 Sec. 455.254. EMERGENCY SUSPENSION. (a) The board or a
11-18 three-member committee of board members designated by the board
11-19 shall temporarily suspend the certificate of registration of a
11-20 certificate holder if the board or committee determines from the
11-21 evidence or information presented to it that continued practice by
11-22 the certificate holder would constitute a continuing and imminent
11-23 threat to the public welfare.
11-24 (b) A certificate of registration may be suspended under
11-25 this section without notice or hearing on the complaint if:
11-26 (1) action is taken to initiate proceedings for a
12-1 hearing before the State Office of Administrative Hearings
12-2 simultaneously with the temporary suspension; and
12-3 (2) a hearing is held as soon as practicable under
12-4 this chapter and Chapter 2001, Government Code.
12-5 (c) The State Office of Administrative Hearings shall hold a
12-6 preliminary hearing not later than the 14th day after the date of
12-7 the temporary suspension to determine if there is probable cause to
12-8 believe that a continuing and imminent threat to the public welfare
12-9 still exists. A final hearing on the matter shall be held not
12-10 later than the 61st day after the date of the temporary suspension.
12-11 SECTION 10. Subchapter H, Chapter 502, Occupations Code, is
12-12 amended by adding Section 502.356 to read as follows:
12-13 Sec. 502.356. EMERGENCY SUSPENSION. (a) The board or a
12-14 three-member committee of board members designated by the board
12-15 shall temporarily suspend the license of a license holder if the
12-16 board or committee determines from the evidence or information
12-17 presented to it that continued practice by the license holder would
12-18 constitute a continuing and imminent threat to the public welfare.
12-19 (b) A license may be suspended under this section without
12-20 notice or hearing on the complaint if:
12-21 (1) action is taken to initiate proceedings for a
12-22 hearing before the State Office of Administrative Hearings
12-23 simultaneously with the temporary suspension; and
12-24 (2) a hearing is held as soon as practicable under
12-25 this chapter and Chapter 2001, Government Code.
12-26 (c) The State Office of Administrative Hearings shall hold a
13-1 preliminary hearing not later than the 14th day after the date of
13-2 the temporary suspension to determine if there is probable cause to
13-3 believe that a continuing and imminent threat to the public welfare
13-4 still exists. A final hearing on the matter shall be held not
13-5 later than the 61st day after the date of the temporary suspension.
13-6 SECTION 11. Chapter 503, Occupations Code, is amended by
13-7 adding Subchapter K to read as follows:
13-8 SUBCHAPTER K. ADMINISTRATIVE PENALTY
13-9 Sec. 503.501. IMPOSITION OF ADMINISTRATIVE PENALTY. The
13-10 board may impose an administrative penalty on a person licensed
13-11 under this chapter who violates this chapter or a rule or order
13-12 adopted under this chapter.
13-13 Sec. 503.502. AMOUNT OF ADMINISTRATIVE PENALTY. (a) The
13-14 amount of the administrative penalty may not be less than $50 or
13-15 more than $500 for each violation. Each day a violation continues
13-16 or occurs is a separate violation for the purpose of imposing a
13-17 penalty.
13-18 (b) The amount shall be based on:
13-19 (1) the seriousness of the violation, including the
13-20 nature, circumstances, extent, and gravity of the violation;
13-21 (2) the economic harm caused by the violation;
13-22 (3) the history of previous violations;
13-23 (4) the amount necessary to deter a future violation;
13-24 (5) efforts to correct the violation; and
13-25 (6) any other matter that justice may require.
13-26 Sec. 503.503. REPORT AND NOTICE OF VIOLATION AND PENALTY.
14-1 (a) If the commissioner of public health determines that a
14-2 violation occurred, the commissioner may issue to the board a
14-3 report stating:
14-4 (1) the facts on which the determination is based; and
14-5 (2) the commissioner's recommendation on the
14-6 imposition of an administrative penalty, including a recommendation
14-7 on the amount of the penalty.
14-8 (b) Within 14 days after the date the report is issued, the
14-9 commissioner of public health shall give written notice of the
14-10 report to the person. The notice must:
14-11 (1) include a brief summary of the alleged violation;
14-12 (2) state the amount of the recommended administrative
14-13 penalty; and
14-14 (3) inform the person of the person's right to a
14-15 hearing on the occurrence of the violation, the amount of the
14-16 penalty, or both.
14-17 Sec. 503.504. PENALTY TO BE PAID OR HEARING REQUESTED. (a)
14-18 Within 10 days after the date the person receives the notice, the
14-19 person in writing may:
14-20 (1) accept the determination and recommended
14-21 administrative penalty of the commissioner of public health; or
14-22 (2) make a request for a hearing on the occurrence of
14-23 the violation, the amount of the penalty, or both.
14-24 (b) If the person accepts the determination and recommended
14-25 penalty of the commissioner of public health, the board by order
14-26 shall approve the determination and impose the recommended penalty.
15-1 Sec. 503.505. HEARING. (a) If the person requests a
15-2 hearing or fails to respond in a timely manner to the notice, the
15-3 commissioner of public health shall set a hearing and give written
15-4 notice of the hearing to the person.
15-5 (b) An administrative law judge of the State Office of
15-6 Administrative Hearings shall hold the hearing.
15-7 (c) The administrative law judge shall make findings of fact
15-8 and conclusions of law and promptly issue to the board a proposal
15-9 for a decision about the occurrence of the violation and the amount
15-10 of a proposed administrative penalty.
15-11 Sec. 503.506. DECISION BY BOARD. (a) Based on the findings
15-12 of fact, conclusions of law, and proposal for decision, the board
15-13 by order may determine that:
15-14 (1) a violation occurred and impose an administrative
15-15 penalty; or
15-16 (2) a violation did not occur.
15-17 (b) The notice of the board's order given to the person must
15-18 include a statement of the right of the person to judicial review
15-19 of the order.
15-20 Sec. 503.507. OPTIONS FOLLOWING DECISION: PAY OR APPEAL.
15-21 (a) Within 30 days after the date the board's order becomes final,
15-22 the person shall:
15-23 (1) pay the administrative penalty; or
15-24 (2) file a petition for judicial review contesting the
15-25 occurrence of the violation, the amount of the penalty, or both.
15-26 (b) Within the 30-day period prescribed by Subsection (a), a
16-1 person who files a petition for judicial review may:
16-2 (1) stay enforcement of the penalty by:
16-3 (A) paying the penalty to the court for
16-4 placement in an escrow account; or
16-5 (B) giving the court a supersedeas bond approved
16-6 by the court that:
16-7 (i) is for the amount of the penalty; and
16-8 (ii) is effective until all judicial
16-9 review of the board's order is final; or
16-10 (2) request the court to stay enforcement of the
16-11 penalty by:
16-12 (A) filing with the court a sworn affidavit of
16-13 the person stating that the person is financially unable to pay the
16-14 penalty and is financially unable to give the supersedeas bond; and
16-15 (B) giving a copy of the affidavit to the
16-16 commissioner of public health by certified mail.
16-17 (c) If the commissioner of public health receives a copy of
16-18 an affidavit under Subsection (b)(2), the commissioner may file
16-19 with the court, within five days after the date the copy is
16-20 received, a contest to the affidavit.
16-21 (d) The court shall hold a hearing on the facts alleged in
16-22 the affidavit as soon as practicable and shall stay the enforcement
16-23 of the penalty on finding that the alleged facts are true. The
16-24 person who files an affidavit has the burden of proving that the
16-25 person is financially unable to pay the penalty and to give a
16-26 supersedeas bond.
17-1 Sec. 503.508. COLLECTION OF PENALTY. (a) If the person
17-2 does not pay the administrative penalty and the enforcement of the
17-3 penalty is not stayed, the penalty may be collected.
17-4 (b) The attorney general may sue to collect the penalty.
17-5 Sec. 503.509. DETERMINATION BY COURT. (a) If the court
17-6 sustains the determination that a violation occurred, the court may
17-7 uphold or reduce the amount of the administrative penalty and order
17-8 the person to pay the full or reduced amount of the penalty.
17-9 (b) If the court does not sustain the finding that a
17-10 violation occurred, the court shall order that a penalty is not
17-11 owed.
17-12 Sec. 503.510. REMITTANCE OF PENALTY AND INTEREST. (a) If
17-13 the person paid the administrative penalty and if the amount of the
17-14 penalty is reduced or the penalty is not upheld by the court, the
17-15 court shall order, when the court's judgment becomes final, that
17-16 the appropriate amount plus accrued interest be remitted to the
17-17 person.
17-18 (b) The interest accrues at the rate charged on loans to
17-19 depository institutions by the New York Federal Reserve Bank.
17-20 (c) The interest shall be paid for the period beginning on
17-21 the date the penalty is paid and ending on the date the penalty is
17-22 remitted.
17-23 (d) If the person gave a supersedeas bond and the penalty is
17-24 not upheld by the court, the court shall order, when the court's
17-25 judgment becomes final, the release of the bond.
17-26 (e) If the person gave a supersedeas bond and the amount of
18-1 the penalty is reduced, the court shall order the release of the
18-2 bond after the person pays the reduced amount.
18-3 Sec. 503.511. ADMINISTRATIVE PROCEDURE. A proceeding under
18-4 this subchapter is a contested case under Chapter 2001, Government
18-5 Code.
18-6 SECTION 12. Subchapter J, Chapter 505, Occupations Code, is
18-7 amended by adding Section 505.507 to read as follows:
18-8 Sec. 505.507. CRIMINAL PENALTY. (a) A person required to
18-9 hold a license under this chapter commits an offense if the person
18-10 knowingly acts as a social worker without holding a license issued
18-11 under this chapter.
18-12 (b) An offense under Subsection (a) is a Class B
18-13 misdemeanor.
18-14 SECTION 13. Subchapter G, Chapter 601, Occupations Code, is
18-15 amended by adding Section 601.306 to read as follows:
18-16 Sec. 601.306. EMERGENCY SUSPENSION. (a) The board or a
18-17 three-member committee of board members designated by the board
18-18 shall temporarily suspend the certificate of a certificate holder
18-19 if the board or committee determines from the evidence or
18-20 information presented to it that continued practice by the
18-21 certificate holder would constitute a continuing and imminent
18-22 threat to the public welfare.
18-23 (b) A certificate may be suspended under this section
18-24 without notice or hearing on the complaint if:
18-25 (1) action is taken to initiate proceedings for a
18-26 hearing before the State Office of Administrative Hearings
19-1 simultaneously with the temporary suspension; and
19-2 (2) a hearing is held as soon as practicable under
19-3 this chapter and Chapter 2001, Government Code.
19-4 (c) The State Office of Administrative Hearings shall hold a
19-5 preliminary hearing not later than the 14th day after the date of
19-6 the temporary suspension to determine if there is probable cause to
19-7 believe that a continuing and imminent threat to the public welfare
19-8 still exists. A final hearing on the matter shall be held not
19-9 later than the 61st day after the date of the temporary suspension.
19-10 SECTION 14. Subchapter F, Chapter 602, Occupations Code, is
19-11 amended by adding Section 602.254 to read as follows:
19-12 Sec. 602.254. EMERGENCY SUSPENSION. (a) The board or a
19-13 three-member committee of board members designated by the board
19-14 shall temporarily suspend the license of a license holder if the
19-15 board or committee determines from the evidence or information
19-16 presented to it that continued practice by the license holder would
19-17 constitute a continuing and imminent threat to the public welfare.
19-18 (b) A license may be suspended under this section without
19-19 notice or hearing on the complaint if:
19-20 (1) action is taken to initiate proceedings for a
19-21 hearing before the State Office of Administrative Hearings
19-22 simultaneously with the temporary suspension; and
19-23 (2) a hearing is held as soon as practicable under
19-24 this chapter and Chapter 2001, Government Code.
19-25 (c) The State Office of Administrative Hearings shall hold a
19-26 preliminary hearing not later than the 14th day after the date of
20-1 the temporary suspension to determine if there is probable cause to
20-2 believe that a continuing and imminent threat to the public welfare
20-3 still exists. A final hearing on the matter shall be held not
20-4 later than the 61st day after the date of the temporary suspension.
20-5 SECTION 15. Subchapter G, Chapter 602, Occupations Code, is
20-6 amended by adding Section 602.3015 to read as follows:
20-7 Sec. 602.3015. CIVIL PENALTY. (a) A person who violates
20-8 this chapter or a rule or order adopted by the board under this
20-9 chapter is liable for a civil penalty not to exceed $1,000 a day.
20-10 (b) At the request of the board or department, the attorney
20-11 general shall bring an action to recover a civil penalty authorized
20-12 under this section.
20-13 SECTION 16. Section 602.302, Occupations Code, is amended to
20-14 read as follows:
20-15 Sec. 602.302. OFFENSE. (a) A person commits an offense if
20-16 the person [knowingly]:
20-17 (1) practices medical physics without holding a
20-18 license under this chapter;
20-19 (2) practices a specialty of medical physics without
20-20 holding a license for the specialty;
20-21 (3) knowingly practices medical physics in violation
20-22 of this chapter; or
20-23 (4) knowingly [(2)] uses in any manner letters,
20-24 terminology, symbols, or signs to indicate or imply that the person
20-25 is qualified or licensed to practice medical physics in a manner
20-26 for which the person is not licensed under this chapter.
21-1 (b) An offense under this section is a Class A [B]
21-2 misdemeanor.
21-3 SECTION 17. Subchapter I, Chapter 603, Occupations Code, is
21-4 amended by adding Section 603.408 to read as follows:
21-5 Sec. 603.408. EMERGENCY SUSPENSION. (a) The board or a
21-6 three-member committee of board members designated by the board
21-7 shall temporarily suspend the license of a license holder if the
21-8 board or committee determines from the evidence or information
21-9 presented to it that continued practice by the license holder would
21-10 constitute a continuing and imminent threat to the public welfare.
21-11 (b) A license may be suspended under this section without
21-12 notice or hearing on the complaint if:
21-13 (1) action is taken to initiate proceedings for a
21-14 hearing before the State Office of Administrative Hearings
21-15 simultaneously with the temporary suspension; and
21-16 (2) a hearing is held as soon as practicable under
21-17 this chapter and Chapter 2001, Government Code.
21-18 (c) The State Office of Administrative Hearings shall hold a
21-19 preliminary hearing not later than the 14th day after the date of
21-20 the temporary suspension to determine if there is probable cause to
21-21 believe that a continuing and imminent threat to the public welfare
21-22 still exists. A final hearing on the matter shall be held not
21-23 later than the 61st day after the date of the temporary suspension.
21-24 SECTION 18. Subchapter J, Chapter 603, Occupations Code, is
21-25 amended by adding Section 603.4515 to read as follows:
21-26 Sec. 603.4515. CIVIL PENALTY. (a) A person who violates
22-1 this chapter or a rule or order adopted by the board under this
22-2 chapter is liable for a civil penalty not to exceed $1,000 a day.
22-3 (b) At the request of the board or department, the attorney
22-4 general shall bring an action to recover a civil penalty authorized
22-5 under this section.
22-6 SECTION 19. Chapter 603, Occupations Code, is amended by
22-7 adding Subchapter K to read as follows:
22-8 SUBCHAPTER K. ADMINISTRATIVE PENALTY
22-9 Sec. 603.501. IMPOSITION OF ADMINISTRATIVE PENALTY. The
22-10 board may impose an administrative penalty on a person licensed
22-11 under this chapter who violates this chapter or a rule or order
22-12 adopted under this chapter.
22-13 Sec. 603.502. AMOUNT OF ADMINISTRATIVE PENALTY. (a) The
22-14 amount of the administrative penalty may not be less than $50 or
22-15 more than $500 for each violation. Each day a violation continues
22-16 or occurs is a separate violation for the purpose of imposing a
22-17 penalty.
22-18 (b) The amount shall be based on:
22-19 (1) the seriousness of the violation, including the
22-20 nature, circumstances, extent, and gravity of the violation;
22-21 (2) the economic harm caused by the violation;
22-22 (3) the history of previous violations;
22-23 (4) the amount necessary to deter a future violation;
22-24 (5) efforts to correct the violation; and
22-25 (6) any other matter that justice may require.
22-26 Sec. 603.503. REPORT AND NOTICE OF VIOLATION AND PENALTY.
23-1 (a) If the commissioner determines that a violation occurred, the
23-2 commissioner may issue to the board a report stating:
23-3 (1) the facts on which the determination is based; and
23-4 (2) the commissioner's recommendation on the
23-5 imposition of an administrative penalty, including a recommendation
23-6 on the amount of the penalty.
23-7 (b) Within 14 days after the date the report is issued, the
23-8 commissioner shall give written notice of the report to the person.
23-9 The notice must:
23-10 (1) include a brief summary of the alleged violation;
23-11 (2) state the amount of the recommended administrative
23-12 penalty; and
23-13 (3) inform the person of the person's right to a
23-14 hearing on the occurrence of the violation, the amount of the
23-15 penalty, or both.
23-16 Sec. 603.504. PENALTY TO BE PAID OR HEARING REQUESTED.
23-17 (a) Within 10 days after the date the person receives the notice,
23-18 the person in writing may:
23-19 (1) accept the determination and recommended
23-20 administrative penalty of the commissioner; or
23-21 (2) make a request for a hearing on the occurrence of
23-22 the violation, the amount of the penalty, or both.
23-23 (b) If the person accepts the determination and recommended
23-24 penalty of the commissioner, the board by order shall approve the
23-25 determination and impose the recommended penalty.
23-26 Sec. 603.505. HEARING. (a) If the person requests a
24-1 hearing or fails to respond in a timely manner to the notice, the
24-2 commissioner shall set a hearing and give written notice of the
24-3 hearing to the person.
24-4 (b) An administrative law judge of the State Office of
24-5 Administrative Hearings shall hold the hearing.
24-6 (c) The administrative law judge shall make findings of fact
24-7 and conclusions of law and promptly issue to the board a proposal
24-8 for a decision about the occurrence of the violation and the amount
24-9 of a proposed administrative penalty.
24-10 Sec. 603.506. DECISION BY BOARD. (a) Based on the findings
24-11 of fact, conclusions of law, and proposal for decision, the board
24-12 by order may determine that:
24-13 (1) a violation occurred and impose an administrative
24-14 penalty; or
24-15 (2) a violation did not occur.
24-16 (b) The notice of the board's order given to the person must
24-17 include a statement of the right of the person to judicial review
24-18 of the order.
24-19 Sec. 603.507. OPTIONS FOLLOWING DECISION: PAY OR APPEAL.
24-20 (a) Within 30 days after the date the board's order becomes final,
24-21 the person shall:
24-22 (1) pay the administrative penalty; or
24-23 (2) file a petition for judicial review contesting the
24-24 occurrence of the violation, the amount of the penalty, or both.
24-25 (b) Within the 30-day period prescribed by Subsection (a), a
24-26 person who files a petition for judicial review may:
25-1 (1) stay enforcement of the penalty by:
25-2 (A) paying the penalty to the court for
25-3 placement in an escrow account; or
25-4 (B) giving the court a supersedeas bond approved
25-5 by the court that:
25-6 (i) is for the amount of the penalty; and
25-7 (ii) is effective until all judicial
25-8 review of the board's order is final; or
25-9 (2) request the court to stay enforcement of the
25-10 penalty by:
25-11 (A) filing with the court a sworn affidavit of
25-12 the person stating that the person is financially unable to pay the
25-13 penalty and is financially unable to give the supersedeas bond; and
25-14 (B) giving a copy of the affidavit to the
25-15 commissioner by certified mail.
25-16 (c) If the commissioner receives a copy of an affidavit
25-17 under Subsection (b)(2), the commissioner may file with the court,
25-18 within five days after the date the copy is received, a contest to
25-19 the affidavit.
25-20 (d) The court shall hold a hearing on the facts alleged in
25-21 the affidavit as soon as practicable and shall stay the enforcement
25-22 of the penalty on finding that the alleged facts are true. The
25-23 person who files an affidavit has the burden of proving that the
25-24 person is financially unable to pay the penalty and to give a
25-25 supersedeas bond.
25-26 Sec. 603.508. COLLECTION OF PENALTY. (a) If the person
26-1 does not pay the administrative penalty and the enforcement of the
26-2 penalty is not stayed, the penalty may be collected.
26-3 (b) The attorney general may sue to collect the penalty.
26-4 Sec. 603.509. DETERMINATION BY COURT. (a) If the court
26-5 sustains the determination that a violation occurred, the court may
26-6 uphold or reduce the amount of the administrative penalty and order
26-7 the person to pay the full or reduced amount of the penalty.
26-8 (b) If the court does not sustain the finding that a
26-9 violation occurred, the court shall order that a penalty is not
26-10 owed.
26-11 Sec. 603.510. REMITTANCE OF PENALTY AND INTEREST. (a) If
26-12 the person paid the administrative penalty and if the amount of the
26-13 penalty is reduced or the penalty is not upheld by the court, the
26-14 court shall order, when the court's judgment becomes final, that
26-15 the appropriate amount plus accrued interest be remitted to the
26-16 person.
26-17 (b) The interest accrues at the rate charged on loans to
26-18 depository institutions by the New York Federal Reserve Bank.
26-19 (c) The interest shall be paid for the period beginning on
26-20 the date the penalty is paid and ending on the date the penalty is
26-21 remitted.
26-22 (d) If the person gave a supersedeas bond and the penalty is
26-23 not upheld by the court, the court shall order, when the court's
26-24 judgment becomes final, the release of the bond.
26-25 (e) If the person gave a supersedeas bond and the amount of
26-26 the penalty is reduced, the court shall order the release of the
27-1 bond after the person pays the reduced amount.
27-2 Sec. 603.511. ADMINISTRATIVE PROCEDURE. A proceeding under
27-3 this subchapter is a contested case under Chapter 2001, Government
27-4 Code.
27-5 SECTION 20. Subchapter H, Chapter 605, Occupations Code, is
27-6 amended by adding Section 605.3535 to read as follows:
27-7 Sec. 605.3535. EMERGENCY SUSPENSION. (a) The board or a
27-8 three-member committee of board members designated by the board
27-9 shall temporarily suspend the license of a license holder if the
27-10 board or committee determines from the evidence or information
27-11 presented to it that continued practice by the license holder would
27-12 constitute a continuing and imminent threat to the public welfare.
27-13 (b) A license may be suspended under this section without
27-14 notice or hearing on the complaint if:
27-15 (1) action is taken to initiate proceedings for a
27-16 hearing before the State Office of Administrative Hearings
27-17 simultaneously with the temporary suspension; and
27-18 (2) a hearing is held as soon as practicable under
27-19 this chapter and Chapter 2001, Government Code.
27-20 (c) The State Office of Administrative Hearings shall hold a
27-21 preliminary hearing not later than the 14th day after the date of
27-22 the temporary suspension to determine if there is probable cause to
27-23 believe that a continuing and imminent threat to the public welfare
27-24 still exists. A final hearing on the matter shall be held not
27-25 later than the 61st day after the date of the temporary suspension.
27-26 SECTION 21. Subchapter H, Chapter 605, Occupations Code, is
28-1 amended by adding Section 605.356 to read as follows:
28-2 Sec. 605.356. CRIMINAL PENALTY. (a) A person required to
28-3 hold a license under this chapter commits an offense if the person
28-4 knowingly practices, attempts to practice, or offers to practice
28-5 orthotics or prosthetics without holding a license issued under
28-6 this chapter.
28-7 (b) An offense under Subsection (a) is a Class B
28-8 misdemeanor.
28-9 SECTION 22. Chapter 605, Occupations Code, is amended by
28-10 adding Subchapter I to read as follows:
28-11 SUBCHAPTER I. ADMINISTRATIVE PENALTY
28-12 Sec. 605.401. IMPOSITION OF ADMINISTRATIVE PENALTY. The
28-13 board may impose an administrative penalty on a person licensed
28-14 under this chapter who violates this chapter or a rule or order
28-15 adopted under this chapter.
28-16 Sec. 605.402. AMOUNT OF ADMINISTRATIVE PENALTY. (a) The
28-17 amount of the administrative penalty may not be less than $50 or
28-18 more than $500 for each violation. Each day a violation continues
28-19 or occurs is a separate violation for the purpose of imposing a
28-20 penalty.
28-21 (b) The amount shall be based on:
28-22 (1) the seriousness of the violation, including the
28-23 nature, circumstances, extent, and gravity of the violation;
28-24 (2) the economic harm caused by the violation;
28-25 (3) the history of previous violations;
28-26 (4) the amount necessary to deter a future violation;
29-1 (5) efforts to correct the violation; and
29-2 (6) any other matter that justice may require.
29-3 Sec. 605.403. REPORT AND NOTICE OF VIOLATION AND PENALTY.
29-4 (a) If the executive director determines that a violation
29-5 occurred, the director may issue to the board a report stating:
29-6 (1) the facts on which the determination is based; and
29-7 (2) the director's recommendation on the imposition of
29-8 an administrative penalty, including a recommendation on the amount
29-9 of the penalty.
29-10 (b) Within 14 days after the date the report is issued, the
29-11 executive director shall give written notice of the report to the
29-12 person. The notice must:
29-13 (1) include a brief summary of the alleged violation;
29-14 (2) state the amount of the recommended administrative
29-15 penalty; and
29-16 (3) inform the person of the person's right to a
29-17 hearing on the occurrence of the violation, the amount of the
29-18 penalty, or both.
29-19 Sec. 605.404. PENALTY TO BE PAID OR HEARING REQUESTED.
29-20 (a) Within 10 days after the date the person receives the notice,
29-21 the person in writing may:
29-22 (1) accept the determination and recommended
29-23 administrative penalty of the executive director; or
29-24 (2) make a request for a hearing on the occurrence of
29-25 the violation, the amount of the penalty, or both.
29-26 (b) If the person accepts the determination and recommended
30-1 penalty of the executive director, the board by order shall approve
30-2 the determination and impose the recommended penalty.
30-3 Sec. 605.405. HEARING. (a) If the person requests a
30-4 hearing or fails to respond in a timely manner to the notice, the
30-5 executive director shall set a hearing and give written notice of
30-6 the hearing to the person.
30-7 (b) An administrative law judge of the State Office of
30-8 Administrative Hearings shall hold the hearing.
30-9 (c) The administrative law judge shall make findings of fact
30-10 and conclusions of law and promptly issue to the board a proposal
30-11 for a decision about the occurrence of the violation and the amount
30-12 of a proposed administrative penalty.
30-13 Sec. 605.406. DECISION BY BOARD. (a) Based on the findings
30-14 of fact, conclusions of law, and proposal for decision, the board
30-15 by order may determine that:
30-16 (1) a violation occurred and impose an administrative
30-17 penalty; or
30-18 (2) a violation did not occur.
30-19 (b) The notice of the board's order given to the person must
30-20 include a statement of the right of the person to judicial review
30-21 of the order.
30-22 Sec. 605.407. OPTIONS FOLLOWING DECISION: PAY OR APPEAL.
30-23 (a) Within 30 days after the date the board's order becomes final,
30-24 the person shall:
30-25 (1) pay the administrative penalty; or
30-26 (2) file a petition for judicial review contesting the
31-1 occurrence of the violation, the amount of the penalty, or both.
31-2 (b) Within the 30-day period prescribed by Subsection (a), a
31-3 person who files a petition for judicial review may:
31-4 (1) stay enforcement of the penalty by:
31-5 (A) paying the penalty to the court for
31-6 placement in an escrow account; or
31-7 (B) giving the court a supersedeas bond approved
31-8 by the court that:
31-9 (i) is for the amount of the penalty; and
31-10 (ii) is effective until all judicial
31-11 review of the board's order is final; or
31-12 (2) request the court to stay enforcement of the
31-13 penalty by:
31-14 (A) filing with the court a sworn affidavit of
31-15 the person stating that the person is financially unable to pay the
31-16 penalty and is financially unable to give the supersedeas bond; and
31-17 (B) giving a copy of the affidavit to the
31-18 executive director by certified mail.
31-19 (c) If the executive director receives a copy of an
31-20 affidavit under Subsection (b)(2), the director may file with the
31-21 court, within five days after the date the copy is received, a
31-22 contest to the affidavit.
31-23 (d) The court shall hold a hearing on the facts alleged in
31-24 the affidavit as soon as practicable and shall stay the enforcement
31-25 of the penalty on finding that the alleged facts are true. The
31-26 person who files an affidavit has the burden of proving that the
32-1 person is financially unable to pay the penalty and to give a
32-2 supersedeas bond.
32-3 Sec. 605.408. COLLECTION OF PENALTY. (a) If the person
32-4 does not pay the administrative penalty and the enforcement of the
32-5 penalty is not stayed, the penalty may be collected.
32-6 (b) The attorney general may sue to collect the penalty.
32-7 Sec. 605.409. DETERMINATION BY COURT. (a) If the court
32-8 sustains the determination that a violation occurred, the court may
32-9 uphold or reduce the amount of the administrative penalty and order
32-10 the person to pay the full or reduced amount of the penalty.
32-11 (b) If the court does not sustain the finding that a
32-12 violation occurred, the court shall order that a penalty is not
32-13 owed.
32-14 Sec. 605.410. REMITTANCE OF PENALTY AND INTEREST. (a) If
32-15 the person paid the administrative penalty and if the amount of the
32-16 penalty is reduced or the penalty is not upheld by the court, the
32-17 court shall order, when the court's judgment becomes final, that
32-18 the appropriate amount plus accrued interest be remitted to the
32-19 person.
32-20 (b) The interest accrues at the rate charged on loans to
32-21 depository institutions by the New York Federal Reserve Bank.
32-22 (c) The interest shall be paid for the period beginning on
32-23 the date the penalty is paid and ending on the date the penalty is
32-24 remitted.
32-25 (d) If the person gave a supersedeas bond and the penalty is
32-26 not upheld by the court, the court shall order, when the court's
33-1 judgment becomes final, the release of the bond.
33-2 (e) If the person gave a supersedeas bond and the amount of
33-3 the penalty is reduced, the court shall order the release of the
33-4 bond after the person pays the reduced amount.
33-5 Sec. 605.411. ADMINISTRATIVE PROCEDURE. A proceeding under
33-6 this subchapter is a contested case under Chapter 2001, Government
33-7 Code.
33-8 SECTION 23. Subchapter I, Chapter 701, Occupations Code, is
33-9 amended by adding Section 701.408 to read as follows:
33-10 Sec. 701.408. EMERGENCY SUSPENSION. (a) The dietitians
33-11 board or a three-member committee of board members designated by
33-12 the board shall temporarily suspend the license of a license holder
33-13 if the board or committee determines from the evidence or
33-14 information presented to it that continued practice by the license
33-15 holder would constitute a continuing and imminent threat to the
33-16 public welfare.
33-17 (b) A license may be suspended under this section without
33-18 notice or hearing on the complaint if:
33-19 (1) action is taken to initiate proceedings for a
33-20 hearing before the State Office of Administrative Hearings
33-21 simultaneously with the temporary suspension; and
33-22 (2) a hearing is held as soon as practicable under
33-23 this chapter and Chapter 2001, Government Code.
33-24 (c) The State Office of Administrative Hearings shall hold a
33-25 preliminary hearing not later than the 14th day after the date of
33-26 the temporary suspension to determine if there is probable cause to
34-1 believe that a continuing and imminent threat to the public welfare
34-2 still exists. A final hearing on the matter shall be held not
34-3 later than the 61st day after the date of the temporary suspension.
34-4 SECTION 24. Chapter 701, Occupations Code, is amended by
34-5 adding Subchapter K to read as follows:
34-6 SUBCHAPTER K. ADMINISTRATIVE PENALTY
34-7 Sec. 701.501. IMPOSITION OF ADMINISTRATIVE PENALTY. The
34-8 dietitians board may impose an administrative penalty on a person
34-9 licensed under this chapter who violates this chapter or a rule or
34-10 order adopted under this chapter.
34-11 Sec. 701.502. AMOUNT OF ADMINISTRATIVE PENALTY. (a) The
34-12 amount of the administrative penalty may not be less than $50 or
34-13 more than $500 for each violation. Each day a violation continues
34-14 or occurs is a separate violation for the purpose of imposing a
34-15 penalty.
34-16 (b) The amount shall be based on:
34-17 (1) the seriousness of the violation, including the
34-18 nature, circumstances, extent, and gravity of the violation;
34-19 (2) the economic harm caused by the violation;
34-20 (3) the history of previous violations;
34-21 (4) the amount necessary to deter a future violation;
34-22 (5) efforts to correct the violation; and
34-23 (6) any other matter that justice may require.
34-24 Sec. 701.503. REPORT AND NOTICE OF VIOLATION AND PENALTY.
34-25 (a) If the commissioner determines that a violation occurred, the
34-26 commissioner may issue to the dietitians board a report stating:
35-1 (1) the facts on which the determination is based; and
35-2 (2) the commissioner's recommendation on the
35-3 imposition of an administrative penalty, including a recommendation
35-4 on the amount of the penalty.
35-5 (b) Within 14 days after the date the report is issued, the
35-6 commissioner shall give written notice of the report to the person.
35-7 The notice must:
35-8 (1) include a brief summary of the alleged violation;
35-9 (2) state the amount of the recommended administrative
35-10 penalty; and
35-11 (3) inform the person of the person's right to a
35-12 hearing on the occurrence of the violation, the amount of the
35-13 penalty, or both.
35-14 Sec. 701.504. PENALTY TO BE PAID OR HEARING REQUESTED. (a)
35-15 Within 10 days after the date the person receives the notice, the
35-16 person in writing may:
35-17 (1) accept the determination and recommended
35-18 administrative penalty of the commissioner; or
35-19 (2) make a request for a hearing on the occurrence of
35-20 the violation, the amount of the penalty, or both.
35-21 (b) If the person accepts the determination and recommended
35-22 penalty of the commissioner, the dietitians board by order shall
35-23 approve the determination and impose the recommended penalty.
35-24 Sec. 701.505. HEARING. (a) If the person requests a
35-25 hearing or fails to respond in a timely manner to the notice, the
35-26 commissioner shall set a hearing and give written notice of the
36-1 hearing to the person.
36-2 (b) An administrative law judge of the State Office of
36-3 Administrative Hearings shall hold the hearing.
36-4 (c) The administrative law judge shall make findings of fact
36-5 and conclusions of law and promptly issue to the dietitians board a
36-6 proposal for a decision about the occurrence of the violation and
36-7 the amount of a proposed administrative penalty.
36-8 Sec. 701.506. DECISION BY DIETITIANS BOARD. (a) Based on
36-9 the findings of fact, conclusions of law, and proposal for
36-10 decision, the dietitians board by order may determine that:
36-11 (1) a violation occurred and impose an administrative
36-12 penalty; or
36-13 (2) a violation did not occur.
36-14 (b) The notice of the dietitians board's order given to the
36-15 person must include a statement of the right of the person to
36-16 judicial review of the order.
36-17 Sec. 701.507. OPTIONS FOLLOWING DECISION: PAY OR APPEAL.
36-18 (a) Within 30 days after the date the dietitians board's order
36-19 becomes final, the person shall:
36-20 (1) pay the administrative penalty; or
36-21 (2) file a petition for judicial review contesting the
36-22 occurrence of the violation, the amount of the penalty, or both.
36-23 (b) Within the 30-day period prescribed by Subsection (a), a
36-24 person who files a petition for judicial review may:
36-25 (1) stay enforcement of the penalty by:
36-26 (A) paying the penalty to the court for
37-1 placement in an escrow account; or
37-2 (B) giving the court a supersedeas bond approved
37-3 by the court that:
37-4 (i) is for the amount of the penalty; and
37-5 (ii) is effective until all judicial
37-6 review of the dietitians board's order is final; or
37-7 (2) request the court to stay enforcement of the
37-8 penalty by:
37-9 (A) filing with the court a sworn affidavit of
37-10 the person stating that the person is financially unable to pay the
37-11 penalty and is financially unable to give the supersedeas bond; and
37-12 (B) giving a copy of the affidavit to the
37-13 commissioner by certified mail.
37-14 (c) If the commissioner receives a copy of an affidavit
37-15 under Subsection (b)(2), the commissioner may file with the court,
37-16 within five days after the date the copy is received, a contest to
37-17 the affidavit.
37-18 (d) The court shall hold a hearing on the facts alleged in
37-19 the affidavit as soon as practicable and shall stay the enforcement
37-20 of the penalty on finding that the alleged facts are true. The
37-21 person who files an affidavit has the burden of proving that the
37-22 person is financially unable to pay the penalty and to give a
37-23 supersedeas bond.
37-24 Sec. 701.508. COLLECTION OF PENALTY. (a) If the person
37-25 does not pay the administrative penalty and the enforcement of the
37-26 penalty is not stayed, the penalty may be collected.
38-1 (b) The attorney general may sue to collect the penalty.
38-2 Sec. 701.509. DETERMINATION BY COURT. (a) If the court
38-3 sustains the determination that a violation occurred, the court may
38-4 uphold or reduce the amount of the administrative penalty and order
38-5 the person to pay the full or reduced amount of the penalty.
38-6 (b) If the court does not sustain the finding that a
38-7 violation occurred, the court shall order that a penalty is not
38-8 owed.
38-9 Sec. 701.510. REMITTANCE OF PENALTY AND INTEREST. (a) If
38-10 the person paid the administrative penalty and if the amount of the
38-11 penalty is reduced or the penalty is not upheld by the court, the
38-12 court shall order, when the court's judgment becomes final, that
38-13 the appropriate amount plus accrued interest be remitted to the
38-14 person.
38-15 (b) The interest accrues at the rate charged on loans to
38-16 depository institutions by the New York Federal Reserve Bank.
38-17 (c) The interest shall be paid for the period beginning on
38-18 the date the penalty is paid and ending on the date the penalty is
38-19 remitted.
38-20 (d) If the person gave a supersedeas bond and the penalty is
38-21 not upheld by the court, the court shall order, when the court's
38-22 judgment becomes final, the release of the bond.
38-23 (e) If the person gave a supersedeas bond and the amount of
38-24 the penalty is reduced, the court shall order the release of the
38-25 bond after the person pays the reduced amount.
38-26 Sec. 701.511. ADMINISTRATIVE PROCEDURE. A proceeding under
39-1 this subchapter is a contested case under Chapter 2001, Government
39-2 Code.
39-3 SECTION 25. Chapter 462, Acts of the 68th Legislature,
39-4 Regular Session, 1983 (Article 4413(51), Vernon's Texas Civil
39-5 Statutes), is amended by adding Sections 13D and 13E to read as
39-6 follows:
39-7 Sec. 13D. EMERGENCY SUSPENSION. (a) The council or a
39-8 three-member committee of council members designated by the council
39-9 shall temporarily suspend the registration of a registration holder
39-10 if the council or committee determines from the evidence or
39-11 information presented to it that continued practice by the
39-12 registration holder would constitute a continuing and imminent
39-13 threat to the public welfare.
39-14 (b) A registration may be suspended under this section
39-15 without notice or hearing on the complaint if:
39-16 (1) action is taken to initiate proceedings for a
39-17 hearing before the State Office of Administrative Hearings
39-18 simultaneously with the temporary suspension; and
39-19 (2) a hearing is held as soon as practicable under
39-20 this chapter and Chapter 2001, Government Code.
39-21 (c) The State Office of Administrative Hearings shall hold a
39-22 preliminary hearing not later than the 14th day after the date of
39-23 the temporary suspension to determine if there is probable cause to
39-24 believe that a continuing and imminent threat to the public welfare
39-25 still exists. A final hearing on the matter shall be held not
39-26 later than the 61st day after the date of the temporary suspension.
40-1 Sec. 13E. ADMINISTRATIVE PENALTY. (a) The council may
40-2 impose an administrative penalty on a person registered under this
40-3 Act who violates this Act or a rule or order adopted under this
40-4 Act.
40-5 (b) The amount of the administrative penalty may not be less
40-6 than $50 or more than $500 for each violation. Each day a
40-7 violation continues or occurs is a separate violation for the
40-8 purpose of imposing a penalty. The amount shall be based on:
40-9 (1) the seriousness of the violation, including the
40-10 nature, circumstances, extent, and gravity of the violation;
40-11 (2) the economic harm caused by the violation;
40-12 (3) the history of previous violations;
40-13 (4) the amount necessary to deter a future violation;
40-14 (5) efforts to correct the violation; and
40-15 (6) any other matter that justice may require.
40-16 (c) If the executive director determines that a violation
40-17 occurred, the director may issue to the council a report stating:
40-18 (1) the facts on which the determination is based; and
40-19 (2) the director's recommendation on the imposition of
40-20 an administrative penalty, including a recommendation on the amount
40-21 of the penalty.
40-22 (d) Within 14 days after the date the report is issued, the
40-23 executive director shall give written notice of the report to the
40-24 person. The notice must:
40-25 (1) include a brief summary of the alleged violation;
40-26 (2) state the amount of the recommended administrative
41-1 penalty; and
41-2 (3) inform the person of the person's right to a
41-3 hearing on the occurrence of the violation, the amount of the
41-4 penalty, or both.
41-5 (e) Within 10 days after the date the person receives the
41-6 notice, the person in writing may:
41-7 (1) accept the determination and recommended
41-8 administrative penalty of the executive director; or
41-9 (2) make a request for a hearing on the occurrence of
41-10 the violation, the amount of the penalty, or both.
41-11 (f) If the person accepts the determination and recommended
41-12 penalty of the executive director, the council by order shall
41-13 approve the determination and impose the recommended penalty.
41-14 (g) If the person requests a hearing or fails to respond in
41-15 a timely manner to the notice, the executive director shall set a
41-16 hearing and give written notice of the hearing to the person.
41-17 (h) An administrative law judge of the State Office of
41-18 Administrative Hearings shall hold the hearing.
41-19 (i) The administrative law judge shall make findings of fact
41-20 and conclusions of law and promptly issue to the council a proposal
41-21 for a decision about the occurrence of the violation and the amount
41-22 of a proposed administrative penalty.
41-23 (j) Based on the findings of fact, conclusions of law, and
41-24 proposal for decision, the council by order may determine that:
41-25 (1) a violation occurred and impose an administrative
41-26 penalty; or
42-1 (2) a violation did not occur.
42-2 (k) The notice of the council's order given to the person
42-3 must include a statement of the right of the person to judicial
42-4 review of the order.
42-5 (l) Within 30 days after the date the council's order
42-6 becomes final, the person shall:
42-7 (1) pay the administrative penalty; or
42-8 (2) file a petition for judicial review contesting the
42-9 occurrence of the violation, the amount of the penalty, or both.
42-10 (m) Within the 30-day period prescribed by Subsection (l), a
42-11 person who files a petition for judicial review may:
42-12 (1) stay enforcement of the penalty by:
42-13 (A) paying the penalty to the court for
42-14 placement in an escrow account; or
42-15 (B) giving the court a supersedeas bond approved
42-16 by the court that:
42-17 (i) is for the amount of the penalty; and
42-18 (ii) is effective until all judicial
42-19 review of the council's order is final; or
42-20 (2) request the court to stay enforcement of the
42-21 penalty by:
42-22 (A) filing with the court a sworn affidavit of
42-23 the person stating that the person is financially unable to pay the
42-24 penalty and is financially unable to give the supersedeas bond; and
42-25 (B) giving a copy of the affidavit to the
42-26 executive director by certified mail.
43-1 (n) If the executive director receives a copy of an
43-2 affidavit under Subsection (m)(2), the director may file with the
43-3 court, within five days after the date the copy is received, a
43-4 contest to the affidavit.
43-5 (o) The court shall hold a hearing on the facts alleged in
43-6 the affidavit as soon as practicable and shall stay the enforcement
43-7 of the penalty on finding that the alleged facts are true. The
43-8 person who files an affidavit has the burden of proving that the
43-9 person is financially unable to pay the penalty and to give a
43-10 supersedeas bond.
43-11 (p) If the person does not pay the administrative penalty
43-12 and the enforcement of the penalty is not stayed, the penalty may
43-13 be collected. The attorney general may sue to collect the penalty.
43-14 (q) If the court sustains the determination that a violation
43-15 occurred, the court may uphold or reduce the amount of the
43-16 administrative penalty and order the person to pay the full or
43-17 reduced amount of the penalty. If the court does not sustain the
43-18 finding that a violation occurred, the court shall order that a
43-19 penalty is not owed.
43-20 (r) If the person paid the administrative penalty and if the
43-21 amount of the penalty is reduced or the penalty is not upheld by
43-22 the court, the court shall order, when the court's judgment becomes
43-23 final, that the appropriate amount plus accrued interest be
43-24 remitted to the person. The interest accrues at the rate charged
43-25 on loans to depository institutions by the New York Federal Reserve
43-26 Bank. The interest shall be paid for the period beginning on the
44-1 date the penalty is paid and ending on the date the penalty is
44-2 remitted.
44-3 (s) If the person gave a supersedeas bond and the penalty is
44-4 not upheld by the court, the court shall order, when the court's
44-5 judgment becomes final, the release of the bond. If the person
44-6 gave a supersedeas bond and the amount of the penalty is reduced,
44-7 the court shall order the release of the bond after the person pays
44-8 the reduced amount.
44-9 (t) A proceeding under this section is a contested case
44-10 under Chapter 2001, Government Code.
44-11 SECTION 26. (a) This Act takes effect September 1, 2001.
44-12 (b) The change in law made by this Act to Section 602.302,
44-13 Occupations Code, applies only to an offense committed on or after
44-14 the effective date of this Act. For purposes of this subsection,
44-15 an offense is committed before the effective date of this Act if
44-16 any element of the offense occurs before the effective date. An
44-17 offense committed before the effective date of this Act is governed
44-18 by the law in effect on the date the offense was committed, and the
44-19 former law is continued in effect for that purpose.
44-20 (c) The change in law made by this Act relating to
44-21 imposition of an administrative penalty or civil penalty applies
44-22 only to an act or omission that occurs on or after the effective
44-23 date of this Act. An act or omission that occurs before the
44-24 effective date of this Act is governed by the law in effect on the
44-25 date the act or omission occurred, and the former law is continued
44-26 in effect for that purpose.