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 midwifery
1-10 board or a three-member committee of midwifery board members
1-11 designated by the midwifery board shall temporarily suspend the
1-12 letter of documentation of a documented midwife if the midwifery
1-13 board or committee determines from the evidence or information
1-14 presented to it that continued practice by the documented midwife
1-15 would constitute a continuing and imminent threat to the public
1-16 welfare.
1-17 (b) A letter of documentation may be suspended under this
1-18 section without notice or hearing on the complaint if:
1-19 (1) action is taken to initiate proceedings for a
1-20 hearing before the State Office of Administrative Hearings
1-21 simultaneously with the temporary suspension; and
1-22 (2) a hearing is held as soon as practicable under
1-23 this chapter and Chapter 2001, Government Code.
1-24 (c) The State Office of Administrative Hearings shall hold a
1-25 preliminary hearing not later than the 14th day after the date of
2-1 the temporary suspension to determine if there is probable cause to
2-2 believe that a continuing and imminent threat to the public welfare
2-3 still exists. A final hearing on the matter shall be held not
2-4 later than the 61st day after the date of the temporary suspension.
2-5 SECTION 2. Subchapter F, Chapter 352, Occupations Code, is
2-6 amended by adding Section 352.254 to read as follows:
2-7 Sec. 352.254. EMERGENCY SUSPENSION. (a) The department
2-8 shall temporarily suspend the certificate of registration of a
2-9 certificate holder if the department determines from the evidence
2-10 or information presented to it that continued practice by the
2-11 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 department
3-3 shall temporarily suspend the permit of a permit holder if the
3-4 department determines from the evidence or information presented to
3-5 it that continued practice by the permit holder would constitute a
3-6 continuing and imminent threat to the public welfare.
3-7 (b) A permit may be suspended under this section without
3-8 notice or hearing on the complaint if:
3-9 (1) action is taken to initiate proceedings for a
3-10 hearing before the State Office of Administrative Hearings
3-11 simultaneously with the temporary suspension; and
3-12 (2) a hearing is held as soon as practicable under
3-13 this chapter and Chapter 2001, Government Code.
3-14 (c) The State Office of Administrative Hearings shall hold a
3-15 preliminary hearing not later than the 14th day after the date of
3-16 the temporary suspension to determine if there is probable cause to
3-17 believe that a continuing and imminent threat to the public welfare
3-18 still exists. A final hearing on the matter shall be held not
3-19 later than the 61st day after the date of the temporary suspension.
3-20 SECTION 4. Subchapter J, Chapter 401, Occupations Code, is
3-21 amended by adding Section 401.460 to read as follows:
3-22 Sec. 401.460. EMERGENCY SUSPENSION. (a) The board or a
3-23 three-member committee of board members designated by the board
3-24 shall temporarily suspend the license of a license holder if the
3-25 board or committee determines from the evidence or information
3-26 presented to it that continued practice by the license holder would
4-1 constitute a continuing and imminent threat to the public welfare.
4-2 (b) A license may be suspended under this section without
4-3 notice or hearing on the complaint if:
4-4 (1) action is taken to initiate proceedings for a
4-5 hearing before the State Office of Administrative Hearings
4-6 simultaneously with the temporary suspension; and
4-7 (2) a hearing is held as soon as practicable under
4-8 this chapter and Chapter 2001, Government Code.
4-9 (c) The State Office of Administrative Hearings shall hold a
4-10 preliminary hearing not later than the 14th day after the date of
4-11 the temporary suspension to determine if there is probable cause to
4-12 believe that a continuing and imminent threat to the public welfare
4-13 still exists. A final hearing on the matter shall be held not
4-14 later than the 61st day after the date of the temporary suspension.
4-15 SECTION 5. Chapter 401, Occupations Code, is amended by
4-16 adding Subchapter L to read as follows:
4-17 SUBCHAPTER L. ADMINISTRATIVE PENALTY
4-18 Sec. 401.551. IMPOSITION OF ADMINISTRATIVE PENALTY. The
4-19 board may impose an administrative penalty on a person licensed
4-20 under this chapter who violates this chapter or a rule or order
4-21 adopted under this chapter.
4-22 Sec. 401.552. AMOUNT OF ADMINISTRATIVE PENALTY. (a) The
4-23 amount of the administrative penalty may not be less than $50 or
4-24 more than $500 for each violation. Each day a violation continues
4-25 or occurs is a separate violation for the purpose of imposing a
4-26 penalty.
5-1 (b) The amount shall be based on:
5-2 (1) the seriousness of the violation, including the
5-3 nature, circumstances, extent, and gravity of the violation;
5-4 (2) the economic harm caused by the violation;
5-5 (3) the history of previous violations;
5-6 (4) the amount necessary to deter a future violation;
5-7 (5) efforts to correct the violation; and
5-8 (6) any other matter that justice may require.
5-9 Sec. 401.553. REPORT AND NOTICE OF VIOLATION AND PENALTY.
5-10 (a) If the commissioner of public health determines that a
5-11 violation occurred, the commissioner may issue to the board a
5-12 report stating:
5-13 (1) the facts on which the determination is based; and
5-14 (2) the commissioner's recommendation on the
5-15 imposition of an administrative penalty, including a recommendation
5-16 on the amount of the penalty.
5-17 (b) Within 14 days after the date the report is issued, the
5-18 commissioner of public health shall give written notice of the
5-19 report to the person. The notice must:
5-20 (1) include a brief summary of the alleged violation;
5-21 (2) state the amount of the recommended administrative
5-22 penalty; and
5-23 (3) inform the person of the person's right to a
5-24 hearing on the occurrence of the violation, the amount of the
5-25 penalty, or both.
5-26 Sec. 401.554. PENALTY TO BE PAID OR HEARING REQUESTED.
6-1 (a) Within 10 days after the date the person receives the notice,
6-2 the person in writing may:
6-3 (1) accept the determination and recommended
6-4 administrative penalty of the commissioner of public health; or
6-5 (2) make a request for a hearing on the occurrence of
6-6 the violation, the amount of the penalty, or both.
6-7 (b) If the person accepts the determination and recommended
6-8 penalty of the commissioner of public health, the board by order
6-9 shall approve the determination and impose the recommended penalty.
6-10 Sec. 401.555. HEARING. (a) If the person requests a
6-11 hearing or fails to respond in a timely manner to the notice, the
6-12 commissioner of public health shall set a hearing and give written
6-13 notice of the hearing to the person.
6-14 (b) An administrative law judge of the State Office of
6-15 Administrative Hearings shall hold the hearing.
6-16 (c) The administrative law judge shall make findings of fact
6-17 and conclusions of law and promptly issue to the board a proposal
6-18 for a decision about the occurrence of the violation and the amount
6-19 of a proposed administrative penalty.
6-20 Sec. 401.556. DECISION BY BOARD. (a) Based on the findings
6-21 of fact, conclusions of law, and proposal for decision, the board
6-22 by order may determine that:
6-23 (1) a violation occurred and impose an administrative
6-24 penalty; or
6-25 (2) a violation did not occur.
6-26 (b) The notice of the board's order given to the person must
7-1 include a statement of the right of the person to judicial review
7-2 of the order.
7-3 Sec. 401.557. OPTIONS FOLLOWING DECISION: PAY OR APPEAL.
7-4 (a) Within 30 days after the date the board's order becomes final,
7-5 the person shall:
7-6 (1) pay the administrative penalty; or
7-7 (2) file a petition for judicial review contesting the
7-8 occurrence of the violation, the amount of the penalty, or both.
7-9 (b) Within the 30-day period prescribed by Subsection (a), a
7-10 person who files a petition for judicial review may:
7-11 (1) stay enforcement of the penalty by:
7-12 (A) paying the penalty to the court for
7-13 placement in an escrow account; or
7-14 (B) giving the court a supersedeas bond approved
7-15 by the court that:
7-16 (i) is for the amount of the penalty; and
7-17 (ii) is effective until all judicial
7-18 review of the board's order is final; or
7-19 (2) request the court to stay enforcement of the
7-20 penalty by:
7-21 (A) filing with the court a sworn affidavit of
7-22 the person stating that the person is financially unable to pay the
7-23 penalty and is financially unable to give the supersedeas bond; and
7-24 (B) giving a copy of the affidavit to the
7-25 commissioner of public health by certified mail.
7-26 (c) If the commissioner of public health receives a copy of
8-1 an affidavit under Subsection (b)(2), the commissioner may file
8-2 with the court, within five days after the date the copy is
8-3 received, a contest to the affidavit.
8-4 (d) The court shall hold a hearing on the facts alleged in
8-5 the affidavit as soon as practicable and shall stay the enforcement
8-6 of the penalty on finding that the alleged facts are true. The
8-7 person who files an affidavit has the burden of proving that the
8-8 person is financially unable to pay the penalty and to give a
8-9 supersedeas bond.
8-10 Sec. 401.558. COLLECTION OF PENALTY. (a) If the person
8-11 does not pay the administrative penalty and the enforcement of the
8-12 penalty is not stayed, the penalty may be collected.
8-13 (b) The attorney general may sue to collect the penalty.
8-14 Sec. 401.559. DETERMINATION BY COURT. (a) If the court
8-15 sustains the determination that a violation occurred, the court may
8-16 uphold or reduce the amount of the administrative penalty and order
8-17 the person to pay the full or reduced amount of the penalty.
8-18 (b) If the court does not sustain the finding that a
8-19 violation occurred, the court shall order that a penalty is not
8-20 owed.
8-21 Sec. 401.560. REMITTANCE OF PENALTY AND INTEREST. (a) If
8-22 the person paid the administrative penalty and if the amount of the
8-23 penalty is reduced or the penalty is not upheld by the court, the
8-24 court shall order, when the court's judgment becomes final, that
8-25 the appropriate amount plus accrued interest be remitted to the
8-26 person.
9-1 (b) The interest accrues at the rate charged on loans to
9-2 depository institutions by the New York Federal Reserve Bank.
9-3 (c) The interest shall be paid for the period beginning on
9-4 the date the penalty is paid and ending on the date the penalty is
9-5 remitted.
9-6 (d) If the person gave a supersedeas bond and the penalty is
9-7 not upheld by the court, the court shall order, when the court's
9-8 judgment becomes final, the release of the bond.
9-9 (e) If the person gave a supersedeas bond and the amount of
9-10 the penalty is reduced, the court shall order the release of the
9-11 bond after the person pays the reduced amount.
9-12 Sec. 401.561. ADMINISTRATIVE PROCEDURE. A proceeding under
9-13 this subchapter is a contested case under Chapter 2001, Government
9-14 Code.
9-15 SECTION 6. Subchapter K, Chapter 402, Occupations Code, is
9-16 amended by adding Section 402.504 to read as follows:
9-17 Sec. 402.504. EMERGENCY SUSPENSION. (a) The board or a
9-18 three-member committee of board members designated by the board
9-19 shall temporarily suspend the license or permit of a license or
9-20 permit holder if the board or committee determines from the
9-21 evidence or information presented to it that continued practice by
9-22 the license or permit holder would constitute a continuing and
9-23 imminent threat to the public welfare.
9-24 (b) A license or permit may be suspended under this section
9-25 without notice or hearing on the complaint if:
9-26 (1) action is taken to initiate proceedings for a
10-1 hearing before the State Office of Administrative Hearings
10-2 simultaneously with the temporary suspension; and
10-3 (2) a hearing is held as soon as practicable under
10-4 this chapter and Chapter 2001, Government Code.
10-5 (c) The State Office of Administrative Hearings shall hold a
10-6 preliminary hearing not later than the 14th day after the date of
10-7 the temporary suspension to determine if there is probable cause to
10-8 believe that a continuing and imminent threat to the public welfare
10-9 still exists. A final hearing on the matter shall be held not
10-10 later than the 61st day after the date of the temporary suspension.
10-11 SECTION 7. Subchapter L, Chapter 402, Occupations Code, is
10-12 amended by adding Section 402.553 to read as follows:
10-13 Sec. 402.553. CIVIL PENALTY. (a) A person who violates
10-14 this chapter or a rule or order adopted by the board under this
10-15 chapter is liable for a civil penalty not to exceed $1,000 a day.
10-16 (b) At the request of the board or department, the attorney
10-17 general shall bring an action to recover a civil penalty authorized
10-18 under this section.
10-19 SECTION 8. Subchapter F, Chapter 451, Occupations Code, is
10-20 amended by adding Section 451.255 to read as follows:
10-21 Sec. 451.255. EMERGENCY SUSPENSION. (a) The board or a
10-22 three-member committee of board members designated by the board
10-23 shall temporarily suspend the license of a license holder if the
10-24 board or committee determines from the evidence or information
10-25 presented to it that continued practice by the license holder would
10-26 constitute a continuing and imminent threat to the public welfare.
11-1 (b) A license may be suspended under this section without
11-2 notice or hearing on the complaint if:
11-3 (1) action is taken to initiate proceedings for a
11-4 hearing before the State Office of Administrative Hearings
11-5 simultaneously with the temporary suspension; and
11-6 (2) a hearing is held as soon as practicable under
11-7 this chapter and Chapter 2001, Government Code.
11-8 (c) The State Office of Administrative Hearings shall hold a
11-9 preliminary hearing not later than the 14th day after the date of
11-10 the temporary suspension to determine if there is probable cause to
11-11 believe that a continuing and imminent threat to the public welfare
11-12 still exists. A final hearing on the matter shall be held not
11-13 later than the 61st day after the date of the temporary suspension.
11-14 SECTION 9. Subchapter F, Chapter 455, Occupations Code, is
11-15 amended by adding Section 455.254 to read as follows:
11-16 Sec. 455.254. EMERGENCY SUSPENSION. (a) The department
11-17 shall temporarily suspend the certificate of registration of a
11-18 certificate holder if the department determines from the evidence
11-19 or information presented to it that continued practice by the
11-20 certificate holder would constitute a continuing and imminent
11-21 threat to the public welfare.
11-22 (b) A certificate of registration may be suspended under
11-23 this section without notice or hearing on the complaint if:
11-24 (1) action is taken to initiate proceedings for a
11-25 hearing before the State Office of Administrative Hearings
11-26 simultaneously with the temporary suspension; and
12-1 (2) a hearing is held as soon as practicable under
12-2 this chapter and Chapter 2001, Government Code.
12-3 (c) The State Office of Administrative Hearings shall hold a
12-4 preliminary hearing not later than the 14th day after the date of
12-5 the temporary suspension to determine if there is probable cause to
12-6 believe that a continuing and imminent threat to the public welfare
12-7 still exists. A final hearing on the matter shall be held not
12-8 later than the 61st day after the date of the temporary suspension.
12-9 SECTION 10. Subchapter H, Chapter 502, Occupations Code, is
12-10 amended by adding Section 502.356 to read as follows:
12-11 Sec. 502.356. EMERGENCY SUSPENSION. (a) The board or a
12-12 three-member committee of board members designated by the board
12-13 shall temporarily suspend the license of a license holder if the
12-14 board or committee determines from the evidence or information
12-15 presented to it that continued practice by the license holder would
12-16 constitute a continuing and imminent threat to the public welfare.
12-17 (b) A license may be suspended under this section without
12-18 notice or hearing on the complaint if:
12-19 (1) action is taken to initiate proceedings for a
12-20 hearing before the State Office of Administrative Hearings
12-21 simultaneously with the temporary suspension; and
12-22 (2) a hearing is held as soon as practicable under
12-23 this chapter and Chapter 2001, Government Code.
12-24 (c) The State Office of Administrative Hearings shall hold a
12-25 preliminary hearing not later than the 14th day after the date of
12-26 the temporary suspension to determine if there is probable cause to
13-1 believe that a continuing and imminent threat to the public welfare
13-2 still exists. A final hearing on the matter shall be held not
13-3 later than the 61st day after the date of the temporary suspension.
13-4 SECTION 11. Chapter 503, Occupations Code, is amended by
13-5 adding Subchapter K to read as follows:
13-6 SUBCHAPTER K. ADMINISTRATIVE PENALTY
13-7 Sec. 503.501. IMPOSITION OF ADMINISTRATIVE PENALTY. The
13-8 board may impose an administrative penalty on a person licensed
13-9 under this chapter who violates this chapter or a rule or order
13-10 adopted under this chapter.
13-11 Sec. 503.502. AMOUNT OF ADMINISTRATIVE PENALTY. (a) The
13-12 amount of the administrative penalty may not be less than $50 or
13-13 more than $500 for each violation. Each day a violation continues
13-14 or occurs is a separate violation for the purpose of imposing a
13-15 penalty.
13-16 (b) The amount shall be based on:
13-17 (1) the seriousness of the violation, including the
13-18 nature, circumstances, extent, and gravity of the violation;
13-19 (2) the economic harm caused by the violation;
13-20 (3) the history of previous violations;
13-21 (4) the amount necessary to deter a future violation;
13-22 (5) efforts to correct the violation; and
13-23 (6) any other matter that justice may require.
13-24 Sec. 503.503. REPORT AND NOTICE OF VIOLATION AND PENALTY.
13-25 (a) If the commissioner of public health determines that a
13-26 violation occurred, the commissioner may issue to the board a
14-1 report stating:
14-2 (1) the facts on which the determination is based; and
14-3 (2) the commissioner's recommendation on the
14-4 imposition of an administrative penalty, including a recommendation
14-5 on the amount of the penalty.
14-6 (b) Within 14 days after the date the report is issued, the
14-7 commissioner of public health shall give written notice of the
14-8 report to the person. The notice must:
14-9 (1) include a brief summary of the alleged violation;
14-10 (2) state the amount of the recommended administrative
14-11 penalty; and
14-12 (3) inform the person of the person's right to a
14-13 hearing on the occurrence of the violation, the amount of the
14-14 penalty, or both.
14-15 Sec. 503.504. PENALTY TO BE PAID OR HEARING REQUESTED.
14-16 (a) Within 10 days after the date the person receives the notice,
14-17 the person in writing may:
14-18 (1) accept the determination and recommended
14-19 administrative penalty of the commissioner of public health; or
14-20 (2) make a request for a hearing on the occurrence of
14-21 the violation, the amount of the penalty, or both.
14-22 (b) If the person accepts the determination and recommended
14-23 penalty of the commissioner of public health, the board by order
14-24 shall approve the determination and impose the recommended penalty.
14-25 Sec. 503.505. HEARING. (a) If the person requests a
14-26 hearing or fails to respond in a timely manner to the notice, the
15-1 commissioner of public health shall set a hearing and give written
15-2 notice of the hearing to the person.
15-3 (b) An administrative law judge of the State Office of
15-4 Administrative Hearings shall hold the hearing.
15-5 (c) The administrative law judge shall make findings of fact
15-6 and conclusions of law and promptly issue to the board a proposal
15-7 for a decision about the occurrence of the violation and the amount
15-8 of a proposed administrative penalty.
15-9 Sec. 503.506. DECISION BY BOARD. (a) Based on the findings
15-10 of fact, conclusions of law, and proposal for decision, the board
15-11 by order may determine that:
15-12 (1) a violation occurred and impose an administrative
15-13 penalty; or
15-14 (2) a violation did not occur.
15-15 (b) The notice of the board's order given to the person must
15-16 include a statement of the right of the person to judicial review
15-17 of the order.
15-18 Sec. 503.507. OPTIONS FOLLOWING DECISION: PAY OR APPEAL.
15-19 (a) Within 30 days after the date the board's order becomes final,
15-20 the person shall:
15-21 (1) pay the administrative penalty; or
15-22 (2) file a petition for judicial review contesting the
15-23 occurrence of the violation, the amount of the penalty, or both.
15-24 (b) Within the 30-day period prescribed by Subsection (a), a
15-25 person who files a petition for judicial review may:
15-26 (1) stay enforcement of the penalty by:
16-1 (A) paying the penalty to the court for
16-2 placement in an escrow account; or
16-3 (B) giving the court a supersedeas bond approved
16-4 by the court that:
16-5 (i) is for the amount of the penalty; and
16-6 (ii) is effective until all judicial
16-7 review of the board's order is final; or
16-8 (2) request the court to stay enforcement of the
16-9 penalty by:
16-10 (A) filing with the court a sworn affidavit of
16-11 the person stating that the person is financially unable to pay the
16-12 penalty and is financially unable to give the supersedeas bond; and
16-13 (B) giving a copy of the affidavit to the
16-14 commissioner of public health by certified mail.
16-15 (c) If the commissioner of public health receives a copy of
16-16 an affidavit under Subsection (b)(2), the commissioner may file
16-17 with the court, within five days after the date the copy is
16-18 received, a contest to the affidavit.
16-19 (d) The court shall hold a hearing on the facts alleged in
16-20 the affidavit as soon as practicable and shall stay the enforcement
16-21 of the penalty on finding that the alleged facts are true. The
16-22 person who files an affidavit has the burden of proving that the
16-23 person is financially unable to pay the penalty and to give a
16-24 supersedeas bond.
16-25 Sec. 503.508. COLLECTION OF PENALTY. (a) If the person
16-26 does not pay the administrative penalty and the enforcement of the
17-1 penalty is not stayed, the penalty may be collected.
17-2 (b) The attorney general may sue to collect the penalty.
17-3 Sec. 503.509. DETERMINATION BY COURT. (a) If the court
17-4 sustains the determination that a violation occurred, the court may
17-5 uphold or reduce the amount of the administrative penalty and order
17-6 the person to pay the full or reduced amount of the penalty.
17-7 (b) If the court does not sustain the finding that a
17-8 violation occurred, the court shall order that a penalty is not
17-9 owed.
17-10 Sec. 503.510. REMITTANCE OF PENALTY AND INTEREST. (a) If
17-11 the person paid the administrative penalty and if the amount of the
17-12 penalty is reduced or the penalty is not upheld by the court, the
17-13 court shall order, when the court's judgment becomes final, that
17-14 the appropriate amount plus accrued interest be remitted to the
17-15 person.
17-16 (b) The interest accrues at the rate charged on loans to
17-17 depository institutions by the New York Federal Reserve Bank.
17-18 (c) The interest shall be paid for the period beginning on
17-19 the date the penalty is paid and ending on the date the penalty is
17-20 remitted.
17-21 (d) If the person gave a supersedeas bond and the penalty is
17-22 not upheld by the court, the court shall order, when the court's
17-23 judgment becomes final, the release of the bond.
17-24 (e) If the person gave a supersedeas bond and the amount of
17-25 the penalty is reduced, the court shall order the release of the
17-26 bond after the person pays the reduced amount.
18-1 Sec. 503.511. ADMINISTRATIVE PROCEDURE. A proceeding under
18-2 this subchapter is a contested case under Chapter 2001, Government
18-3 Code.
18-4 SECTION 12. Subchapter J, Chapter 505, Occupations Code, is
18-5 amended by adding Section 505.507 to read as follows:
18-6 Sec. 505.507. CRIMINAL PENALTY. (a) A person required to
18-7 hold a license under this chapter commits an offense if the person
18-8 knowingly acts as a social worker without holding a license issued
18-9 under this chapter.
18-10 (b) An offense under Subsection (a) is a Class B
18-11 misdemeanor.
18-12 SECTION 13. Subchapter G, Chapter 601, Occupations Code, is
18-13 amended by adding Section 601.306 to read as follows:
18-14 Sec. 601.306. EMERGENCY SUSPENSION. (a) The department
18-15 shall temporarily suspend the certificate of a certificate holder
18-16 if the department determines from the evidence or information
18-17 presented to it that continued practice by the certificate holder
18-18 would constitute a continuing and imminent threat to the public
18-19 welfare.
18-20 (b) A certificate may be suspended under this section
18-21 without notice or hearing on the complaint if:
18-22 (1) action is taken to initiate proceedings for a
18-23 hearing before the State Office of Administrative Hearings
18-24 simultaneously with the temporary suspension; and
18-25 (2) a hearing is held as soon as practicable under
18-26 this chapter and Chapter 2001, Government Code.
19-1 (c) The State Office of Administrative Hearings shall hold a
19-2 preliminary hearing not later than the 14th day after the date of
19-3 the temporary suspension to determine if there is probable cause to
19-4 believe that a continuing and imminent threat to the public welfare
19-5 still exists. A final hearing on the matter shall be held not
19-6 later than the 61st day after the date of the temporary suspension.
19-7 SECTION 14. Subchapter F, Chapter 602, Occupations Code, is
19-8 amended by adding Section 602.254 to read as follows:
19-9 Sec. 602.254. EMERGENCY SUSPENSION. (a) The board or a
19-10 three-member committee of board members designated by the board
19-11 shall temporarily suspend the license of a license holder if the
19-12 board or committee determines from the evidence or information
19-13 presented to it that continued practice by the license holder would
19-14 constitute a continuing and imminent threat to the public welfare.
19-15 (b) A license may be suspended under this section without
19-16 notice or hearing on the complaint if:
19-17 (1) action is taken to initiate proceedings for a
19-18 hearing before the State Office of Administrative Hearings
19-19 simultaneously with the temporary suspension; and
19-20 (2) a hearing is held as soon as practicable under
19-21 this chapter and Chapter 2001, Government Code.
19-22 (c) The State Office of Administrative Hearings shall hold a
19-23 preliminary hearing not later than the 14th day after the date of
19-24 the temporary suspension to determine if there is probable cause to
19-25 believe that a continuing and imminent threat to the public welfare
19-26 still exists. A final hearing on the matter shall be held not
20-1 later than the 61st day after the date of the temporary suspension.
20-2 SECTION 15. Subchapter G, Chapter 602, Occupations Code, is
20-3 amended by adding Section 602.3015 to read as follows:
20-4 Sec. 602.3015. CIVIL PENALTY. (a) A person who violates
20-5 this chapter or a rule or order adopted by the board under this
20-6 chapter is liable for a civil penalty not to exceed $1,000 a day.
20-7 (b) At the request of the board or department, the attorney
20-8 general shall bring an action to recover a civil penalty authorized
20-9 under this section.
20-10 SECTION 16. Section 602.302, Occupations Code, is amended to
20-11 read as follows:
20-12 Sec. 602.302. OFFENSE. (a) A person commits an offense if
20-13 the person [knowingly]:
20-14 (1) practices medical physics without holding a
20-15 license under this chapter;
20-16 (2) practices a specialty of medical physics without
20-17 holding a license for the specialty;
20-18 (3) knowingly practices medical physics in violation
20-19 of this chapter; or
20-20 (4) knowingly [(2)] uses in any manner letters,
20-21 terminology, symbols, or signs to indicate or imply that the person
20-22 is qualified or licensed to practice medical physics in a manner
20-23 for which the person is not licensed under this chapter.
20-24 (b) An offense under this section is a Class A [B]
20-25 misdemeanor.
20-26 SECTION 17. Subchapter I, Chapter 603, Occupations Code, is
21-1 amended by adding Section 603.408 to read as follows:
21-2 Sec. 603.408. EMERGENCY SUSPENSION. (a) The board or a
21-3 three-member committee of board members designated by the board
21-4 shall temporarily suspend the license of a license holder if the
21-5 board or committee determines from the evidence or information
21-6 presented to it that continued practice by the license holder would
21-7 constitute a continuing and imminent threat to the public welfare.
21-8 (b) A license may be suspended under this section without
21-9 notice or hearing on the complaint if:
21-10 (1) action is taken to initiate proceedings for a
21-11 hearing before the State Office of Administrative Hearings
21-12 simultaneously with the temporary suspension; and
21-13 (2) a hearing is held as soon as practicable under
21-14 this chapter and Chapter 2001, Government Code.
21-15 (c) The State Office of Administrative Hearings shall hold a
21-16 preliminary hearing not later than the 14th day after the date of
21-17 the temporary suspension to determine if there is probable cause to
21-18 believe that a continuing and imminent threat to the public welfare
21-19 still exists. A final hearing on the matter shall be held not
21-20 later than the 61st day after the date of the temporary suspension.
21-21 SECTION 18. Subchapter J, Chapter 603, Occupations Code, is
21-22 amended by adding Section 603.4515 to read as follows:
21-23 Sec. 603.4515. CIVIL PENALTY. (a) A person who violates
21-24 this chapter or a rule or order adopted by the board under this
21-25 chapter is liable for a civil penalty not to exceed $1,000 a day.
21-26 (b) At the request of the board or department, the attorney
22-1 general shall bring an action to recover a civil penalty authorized
22-2 under this section.
22-3 SECTION 19. Chapter 603, Occupations Code, is amended by
22-4 adding Subchapter K to read as follows:
22-5 SUBCHAPTER K. ADMINISTRATIVE PENALTY
22-6 Sec. 603.501. IMPOSITION OF ADMINISTRATIVE PENALTY. The
22-7 board may impose an administrative penalty on a person licensed
22-8 under this chapter who violates this chapter or a rule or order
22-9 adopted under this chapter.
22-10 Sec. 603.502. AMOUNT OF ADMINISTRATIVE PENALTY. (a) The
22-11 amount of the administrative penalty may not be less than $50 or
22-12 more than $500 for each violation. Each day a violation continues
22-13 or occurs is a separate violation for the purpose of imposing a
22-14 penalty.
22-15 (b) The amount shall be based on:
22-16 (1) the seriousness of the violation, including the
22-17 nature, circumstances, extent, and gravity of the violation;
22-18 (2) the economic harm caused by the violation;
22-19 (3) the history of previous violations;
22-20 (4) the amount necessary to deter a future violation;
22-21 (5) efforts to correct the violation; and
22-22 (6) any other matter that justice may require.
22-23 Sec. 603.503. REPORT AND NOTICE OF VIOLATION AND PENALTY.
22-24 (a) If the commissioner determines that a violation occurred, the
22-25 commissioner may issue to the board a report stating:
22-26 (1) the facts on which the determination is based; and
23-1 (2) the commissioner's recommendation on the
23-2 imposition of an administrative penalty, including a recommendation
23-3 on the amount of the penalty.
23-4 (b) Within 14 days after the date the report is issued, the
23-5 commissioner shall give written notice of the report to the person.
23-6 The notice must:
23-7 (1) include a brief summary of the alleged violation;
23-8 (2) state the amount of the recommended administrative
23-9 penalty; and
23-10 (3) inform the person of the person's right to a
23-11 hearing on the occurrence of the violation, the amount of the
23-12 penalty, or both.
23-13 Sec. 603.504. PENALTY TO BE PAID OR HEARING REQUESTED.
23-14 (a) Within 10 days after the date the person receives the notice,
23-15 the person in writing may:
23-16 (1) accept the determination and recommended
23-17 administrative penalty of the commissioner; or
23-18 (2) make a request for a hearing on the occurrence of
23-19 the violation, the amount of the penalty, or both.
23-20 (b) If the person accepts the determination and recommended
23-21 penalty of the commissioner, the board by order shall approve the
23-22 determination and impose the recommended penalty.
23-23 Sec. 603.505. HEARING. (a) If the person requests a
23-24 hearing or fails to respond in a timely manner to the notice, the
23-25 commissioner shall set a hearing and give written notice of the
23-26 hearing to the person.
24-1 (b) An administrative law judge of the State Office of
24-2 Administrative Hearings shall hold the hearing.
24-3 (c) The administrative law judge shall make findings of fact
24-4 and conclusions of law and promptly issue to the board a proposal
24-5 for a decision about the occurrence of the violation and the amount
24-6 of a proposed administrative penalty.
24-7 Sec. 603.506. DECISION BY BOARD. (a) Based on the findings
24-8 of fact, conclusions of law, and proposal for decision, the board
24-9 by order may determine that:
24-10 (1) a violation occurred and impose an administrative
24-11 penalty; or
24-12 (2) a violation did not occur.
24-13 (b) The notice of the board's order given to the person must
24-14 include a statement of the right of the person to judicial review
24-15 of the order.
24-16 Sec. 603.507. OPTIONS FOLLOWING DECISION: PAY OR APPEAL.
24-17 (a) Within 30 days after the date the board's order becomes final,
24-18 the person shall:
24-19 (1) pay the administrative penalty; or
24-20 (2) file a petition for judicial review contesting the
24-21 occurrence of the violation, the amount of the penalty, or both.
24-22 (b) Within the 30-day period prescribed by Subsection (a), a
24-23 person who files a petition for judicial review may:
24-24 (1) stay enforcement of the penalty by:
24-25 (A) paying the penalty to the court for
24-26 placement in an escrow account; or
25-1 (B) giving the court a supersedeas bond approved
25-2 by the court that:
25-3 (i) is for the amount of the penalty; and
25-4 (ii) is effective until all judicial
25-5 review of the board's order is final; or
25-6 (2) request the court to stay enforcement of the
25-7 penalty by:
25-8 (A) filing with the court a sworn affidavit of
25-9 the person stating that the person is financially unable to pay the
25-10 penalty and is financially unable to give the supersedeas bond; and
25-11 (B) giving a copy of the affidavit to the
25-12 commissioner by certified mail.
25-13 (c) If the commissioner receives a copy of an affidavit
25-14 under Subsection (b)(2), the commissioner may file with the court,
25-15 within five days after the date the copy is received, a contest to
25-16 the affidavit.
25-17 (d) The court shall hold a hearing on the facts alleged in
25-18 the affidavit as soon as practicable and shall stay the enforcement
25-19 of the penalty on finding that the alleged facts are true. The
25-20 person who files an affidavit has the burden of proving that the
25-21 person is financially unable to pay the penalty and to give a
25-22 supersedeas bond.
25-23 Sec. 603.508. COLLECTION OF PENALTY. (a) If the person
25-24 does not pay the administrative penalty and the enforcement of the
25-25 penalty is not stayed, the penalty may be collected.
25-26 (b) The attorney general may sue to collect the penalty.
26-1 Sec. 603.509. DETERMINATION BY COURT. (a) If the court
26-2 sustains the determination that a violation occurred, the court may
26-3 uphold or reduce the amount of the administrative penalty and order
26-4 the person to pay the full or reduced amount of the penalty.
26-5 (b) If the court does not sustain the finding that a
26-6 violation occurred, the court shall order that a penalty is not
26-7 owed.
26-8 Sec. 603.510. REMITTANCE OF PENALTY AND INTEREST. (a) If
26-9 the person paid the administrative penalty and if the amount of the
26-10 penalty is reduced or the penalty is not upheld by the court, the
26-11 court shall order, when the court's judgment becomes final, that
26-12 the appropriate amount plus accrued interest be remitted to the
26-13 person.
26-14 (b) The interest accrues at the rate charged on loans to
26-15 depository institutions by the New York Federal Reserve Bank.
26-16 (c) The interest shall be paid for the period beginning on
26-17 the date the penalty is paid and ending on the date the penalty is
26-18 remitted.
26-19 (d) If the person gave a supersedeas bond and the penalty is
26-20 not upheld by the court, the court shall order, when the court's
26-21 judgment becomes final, the release of the bond.
26-22 (e) If the person gave a supersedeas bond and the amount of
26-23 the penalty is reduced, the court shall order the release of the
26-24 bond after the person pays the reduced amount.
26-25 Sec. 603.511. ADMINISTRATIVE PROCEDURE. A proceeding under
26-26 this subchapter is a contested case under Chapter 2001, Government
27-1 Code.
27-2 SECTION 20. Subchapter H, Chapter 605, Occupations Code, is
27-3 amended by adding Section 605.3535 to read as follows:
27-4 Sec. 605.3535. EMERGENCY SUSPENSION. (a) The board or a
27-5 three-member committee of board members designated by the board
27-6 shall temporarily suspend the license of a license holder if the
27-7 board or committee determines from the evidence or information
27-8 presented to it that continued practice by the license holder would
27-9 constitute a continuing and imminent threat to the public welfare.
27-10 (b) A license may be suspended under this section without
27-11 notice or hearing on the complaint if:
27-12 (1) action is taken to initiate proceedings for a
27-13 hearing before the State Office of Administrative Hearings
27-14 simultaneously with the temporary suspension; and
27-15 (2) a hearing is held as soon as practicable under
27-16 this chapter and Chapter 2001, Government Code.
27-17 (c) The State Office of Administrative Hearings shall hold a
27-18 preliminary hearing not later than the 14th day after the date of
27-19 the temporary suspension to determine if there is probable cause to
27-20 believe that a continuing and imminent threat to the public welfare
27-21 still exists. A final hearing on the matter shall be held not
27-22 later than the 61st day after the date of the temporary suspension.
27-23 SECTION 21. Subchapter H, Chapter 605, Occupations Code, is
27-24 amended by adding Section 605.356 to read as follows:
27-25 Sec. 605.356. CRIMINAL PENALTY. (a) A person required to
27-26 hold a license under this chapter commits an offense if the person
28-1 knowingly practices, attempts to practice, or offers to practice
28-2 orthotics or prosthetics without holding a license issued under
28-3 this chapter.
28-4 (b) An offense under Subsection (a) is a Class B
28-5 misdemeanor.
28-6 SECTION 22. Chapter 605, Occupations Code, is amended by
28-7 adding Subchapter I to read as follows:
28-8 SUBCHAPTER I. ADMINISTRATIVE PENALTY
28-9 Sec. 605.401. IMPOSITION OF ADMINISTRATIVE PENALTY. The
28-10 board may impose an administrative penalty on a person licensed
28-11 under this chapter who violates this chapter or a rule or order
28-12 adopted under this chapter.
28-13 Sec. 605.402. AMOUNT OF ADMINISTRATIVE PENALTY. (a) The
28-14 amount of the administrative penalty may not be less than $50 or
28-15 more than $500 for each violation. Each day a violation continues
28-16 or occurs is a separate violation for the purpose of imposing a
28-17 penalty.
28-18 (b) The amount shall be based on:
28-19 (1) the seriousness of the violation, including the
28-20 nature, circumstances, extent, and gravity of the violation;
28-21 (2) the economic harm caused by the violation;
28-22 (3) the history of previous violations;
28-23 (4) the amount necessary to deter a future violation;
28-24 (5) efforts to correct the violation; and
28-25 (6) any other matter that justice may require.
28-26 Sec. 605.403. REPORT AND NOTICE OF VIOLATION AND PENALTY.
29-1 (a) If the executive director determines that a violation
29-2 occurred, the director may issue to the board a report stating:
29-3 (1) the facts on which the determination is based; and
29-4 (2) the director's recommendation on the imposition of
29-5 an administrative penalty, including a recommendation on the amount
29-6 of the penalty.
29-7 (b) Within 14 days after the date the report is issued, the
29-8 executive director shall give written notice of the report to the
29-9 person. The notice must:
29-10 (1) include a brief summary of the alleged violation;
29-11 (2) state the amount of the recommended administrative
29-12 penalty; and
29-13 (3) inform the person of the person's right to a
29-14 hearing on the occurrence of the violation, the amount of the
29-15 penalty, or both.
29-16 Sec. 605.404. PENALTY TO BE PAID OR HEARING REQUESTED.
29-17 (a) Within 10 days after the date the person receives the notice,
29-18 the person in writing may:
29-19 (1) accept the determination and recommended
29-20 administrative penalty of the executive director; or
29-21 (2) make a request for a hearing on the occurrence of
29-22 the violation, the amount of the penalty, or both.
29-23 (b) If the person accepts the determination and recommended
29-24 penalty of the executive director, the board by order shall approve
29-25 the determination and impose the recommended penalty.
29-26 Sec. 605.405. HEARING. (a) If the person requests a
30-1 hearing or fails to respond in a timely manner to the notice, the
30-2 executive director shall set a hearing and give written notice of
30-3 the hearing to the person.
30-4 (b) An administrative law judge of the State Office of
30-5 Administrative Hearings shall hold the hearing.
30-6 (c) The administrative law judge shall make findings of fact
30-7 and conclusions of law and promptly issue to the board a proposal
30-8 for a decision about the occurrence of the violation and the amount
30-9 of a proposed administrative penalty.
30-10 Sec. 605.406. DECISION BY BOARD. (a) Based on the findings
30-11 of fact, conclusions of law, and proposal for decision, the board
30-12 by order may determine that:
30-13 (1) a violation occurred and impose an administrative
30-14 penalty; or
30-15 (2) a violation did not occur.
30-16 (b) The notice of the board's order given to the person must
30-17 include a statement of the right of the person to judicial review
30-18 of the order.
30-19 Sec. 605.407. OPTIONS FOLLOWING DECISION: PAY OR APPEAL.
30-20 (a) Within 30 days after the date the board's order becomes final,
30-21 the person shall:
30-22 (1) pay the administrative penalty; or
30-23 (2) file a petition for judicial review contesting the
30-24 occurrence of the violation, the amount of the penalty, or both.
30-25 (b) Within the 30-day period prescribed by Subsection (a), a
30-26 person who files a petition for judicial review may:
31-1 (1) stay enforcement of the penalty by:
31-2 (A) paying the penalty to the court for
31-3 placement in an escrow account; or
31-4 (B) giving the court a supersedeas bond approved
31-5 by the court that:
31-6 (i) is for the amount of the penalty; and
31-7 (ii) is effective until all judicial
31-8 review of the board's order is final; or
31-9 (2) request the court to stay enforcement of the
31-10 penalty by:
31-11 (A) filing with the court a sworn affidavit of
31-12 the person stating that the person is financially unable to pay the
31-13 penalty and is financially unable to give the supersedeas bond; and
31-14 (B) giving a copy of the affidavit to the
31-15 executive director by certified mail.
31-16 (c) If the executive director receives a copy of an
31-17 affidavit under Subsection (b)(2), the director may file with the
31-18 court, within five days after the date the copy is received, a
31-19 contest to the affidavit.
31-20 (d) The court shall hold a hearing on the facts alleged in
31-21 the affidavit as soon as practicable and shall stay the enforcement
31-22 of the penalty on finding that the alleged facts are true. The
31-23 person who files an affidavit has the burden of proving that the
31-24 person is financially unable to pay the penalty and to give a
31-25 supersedeas bond.
31-26 Sec. 605.408. COLLECTION OF PENALTY. (a) If the person
32-1 does not pay the administrative penalty and the enforcement of the
32-2 penalty is not stayed, the penalty may be collected.
32-3 (b) The attorney general may sue to collect the penalty.
32-4 Sec. 605.409. DETERMINATION BY COURT. (a) If the court
32-5 sustains the determination that a violation occurred, the court may
32-6 uphold or reduce the amount of the administrative penalty and order
32-7 the person to pay the full or reduced amount of the penalty.
32-8 (b) If the court does not sustain the finding that a
32-9 violation occurred, the court shall order that a penalty is not
32-10 owed.
32-11 Sec. 605.410. REMITTANCE OF PENALTY AND INTEREST. (a) If
32-12 the person paid the administrative penalty and if the amount of the
32-13 penalty is reduced or the penalty is not upheld by the court, the
32-14 court shall order, when the court's judgment becomes final, that
32-15 the appropriate amount plus accrued interest be remitted to the
32-16 person.
32-17 (b) The interest accrues at the rate charged on loans to
32-18 depository institutions by the New York Federal Reserve Bank.
32-19 (c) The interest shall be paid for the period beginning on
32-20 the date the penalty is paid and ending on the date the penalty is
32-21 remitted.
32-22 (d) If the person gave a supersedeas bond and the penalty is
32-23 not upheld by the court, the court shall order, when the court's
32-24 judgment becomes final, the release of the bond.
32-25 (e) If the person gave a supersedeas bond and the amount of
32-26 the penalty is reduced, the court shall order the release of the
33-1 bond after the person pays the reduced amount.
33-2 Sec. 605.411. ADMINISTRATIVE PROCEDURE. A proceeding under
33-3 this subchapter is a contested case under Chapter 2001, Government
33-4 Code.
33-5 SECTION 23. Subchapter I, Chapter 701, Occupations Code, is
33-6 amended by adding Section 701.408 to read as follows:
33-7 Sec. 701.408. EMERGENCY SUSPENSION. (a) The dietitians
33-8 board or a three-member committee of board members designated by
33-9 the board shall temporarily suspend the license of a license holder
33-10 if the board or committee determines from the evidence or
33-11 information presented to it that continued practice by the license
33-12 holder would constitute a continuing and imminent threat to the
33-13 public welfare.
33-14 (b) A license may be suspended under this section without
33-15 notice or hearing on the complaint if:
33-16 (1) action is taken to initiate proceedings for a
33-17 hearing before the State Office of Administrative Hearings
33-18 simultaneously with the temporary suspension; and
33-19 (2) a hearing is held as soon as practicable under
33-20 this chapter and Chapter 2001, Government Code.
33-21 (c) The State Office of Administrative Hearings shall hold a
33-22 preliminary hearing not later than the 14th day after the date of
33-23 the temporary suspension to determine if there is probable cause to
33-24 believe that a continuing and imminent threat to the public welfare
33-25 still exists. A final hearing on the matter shall be held not
33-26 later than the 61st day after the date of the temporary suspension.
34-1 SECTION 24. Chapter 701, Occupations Code, is amended by
34-2 adding Subchapter K to read as follows:
34-3 SUBCHAPTER K. ADMINISTRATIVE PENALTY
34-4 Sec. 701.501. IMPOSITION OF ADMINISTRATIVE PENALTY. The
34-5 dietitians board may impose an administrative penalty on a person
34-6 licensed under this chapter who violates this chapter or a rule or
34-7 order adopted under this chapter.
34-8 Sec. 701.502. AMOUNT OF ADMINISTRATIVE PENALTY. (a) The
34-9 amount of the administrative penalty may not be less than $50 or
34-10 more than $500 for each violation. Each day a violation continues
34-11 or occurs is a separate violation for the purpose of imposing a
34-12 penalty.
34-13 (b) The amount shall be based on:
34-14 (1) the seriousness of the violation, including the
34-15 nature, circumstances, extent, and gravity of the violation;
34-16 (2) the economic harm caused by the violation;
34-17 (3) the history of previous violations;
34-18 (4) the amount necessary to deter a future violation;
34-19 (5) efforts to correct the violation; and
34-20 (6) any other matter that justice may require.
34-21 Sec. 701.503. REPORT AND NOTICE OF VIOLATION AND PENALTY.
34-22 (a) If the commissioner determines that a violation occurred, the
34-23 commissioner may issue to the dietitians board a report stating:
34-24 (1) the facts on which the determination is based; and
34-25 (2) the commissioner's recommendation on the
34-26 imposition of an administrative penalty, including a recommendation
35-1 on the amount of the penalty.
35-2 (b) Within 14 days after the date the report is issued, the
35-3 commissioner shall give written notice of the report to the person.
35-4 The notice must:
35-5 (1) include a brief summary of the alleged violation;
35-6 (2) state the amount of the recommended administrative
35-7 penalty; and
35-8 (3) inform the person of the person's right to a
35-9 hearing on the occurrence of the violation, the amount of the
35-10 penalty, or both.
35-11 Sec. 701.504. PENALTY TO BE PAID OR HEARING REQUESTED.
35-12 (a) Within 10 days after the date the person receives the notice,
35-13 the person in writing may:
35-14 (1) accept the determination and recommended
35-15 administrative penalty of the commissioner; or
35-16 (2) make a request for a hearing on the occurrence of
35-17 the violation, the amount of the penalty, or both.
35-18 (b) If the person accepts the determination and recommended
35-19 penalty of the commissioner, the dietitians board by order shall
35-20 approve the determination and impose the recommended penalty.
35-21 Sec. 701.505. HEARING. (a) If the person requests a
35-22 hearing or fails to respond in a timely manner to the notice, the
35-23 commissioner shall set a hearing and give written notice of the
35-24 hearing to the person.
35-25 (b) An administrative law judge of the State Office of
35-26 Administrative Hearings shall hold the hearing.
36-1 (c) The administrative law judge shall make findings of fact
36-2 and conclusions of law and promptly issue to the dietitians board a
36-3 proposal for a decision about the occurrence of the violation and
36-4 the amount of a proposed administrative penalty.
36-5 Sec. 701.506. DECISION BY DIETITIANS BOARD. (a) Based on
36-6 the findings of fact, conclusions of law, and proposal for
36-7 decision, the dietitians board by order may determine that:
36-8 (1) a violation occurred and impose an administrative
36-9 penalty; or
36-10 (2) a violation did not occur.
36-11 (b) The notice of the dietitians board's order given to the
36-12 person must include a statement of the right of the person to
36-13 judicial review of the order.
36-14 Sec. 701.507. OPTIONS FOLLOWING DECISION: PAY OR APPEAL.
36-15 (a) Within 30 days after the date the dietitians board's order
36-16 becomes final, the person shall:
36-17 (1) pay the administrative penalty; or
36-18 (2) file a petition for judicial review contesting the
36-19 occurrence of the violation, the amount of the penalty, or both.
36-20 (b) Within the 30-day period prescribed by Subsection (a), a
36-21 person who files a petition for judicial review may:
36-22 (1) stay enforcement of the penalty by:
36-23 (A) paying the penalty to the court for
36-24 placement in an escrow account; or
36-25 (B) giving the court a supersedeas bond approved
36-26 by the court that:
37-1 (i) is for the amount of the penalty; and
37-2 (ii) is effective until all judicial
37-3 review of the dietitians board's order is final; or
37-4 (2) request the court to stay enforcement of the
37-5 penalty by:
37-6 (A) filing with the court a sworn affidavit of
37-7 the person stating that the person is financially unable to pay the
37-8 penalty and is financially unable to give the supersedeas bond; and
37-9 (B) giving a copy of the affidavit to the
37-10 commissioner by certified mail.
37-11 (c) If the commissioner receives a copy of an affidavit
37-12 under Subsection (b)(2), the commissioner may file with the court,
37-13 within five days after the date the copy is received, a contest to
37-14 the affidavit.
37-15 (d) The court shall hold a hearing on the facts alleged in
37-16 the affidavit as soon as practicable and shall stay the enforcement
37-17 of the penalty on finding that the alleged facts are true. The
37-18 person who files an affidavit has the burden of proving that the
37-19 person is financially unable to pay the penalty and to give a
37-20 supersedeas bond.
37-21 Sec. 701.508. COLLECTION OF PENALTY. (a) If the person
37-22 does not pay the administrative penalty and the enforcement of the
37-23 penalty is not stayed, the penalty may be collected.
37-24 (b) The attorney general may sue to collect the penalty.
37-25 Sec. 701.509. DETERMINATION BY COURT. (a) If the court
37-26 sustains the determination that a violation occurred, the court may
38-1 uphold or reduce the amount of the administrative penalty and order
38-2 the person to pay the full or reduced amount of the penalty.
38-3 (b) If the court does not sustain the finding that a
38-4 violation occurred, the court shall order that a penalty is not
38-5 owed.
38-6 Sec. 701.510. REMITTANCE OF PENALTY AND INTEREST. (a) If
38-7 the person paid the administrative penalty and if the amount of the
38-8 penalty is reduced or the penalty is not upheld by the court, the
38-9 court shall order, when the court's judgment becomes final, that
38-10 the appropriate amount plus accrued interest be remitted to the
38-11 person.
38-12 (b) The interest accrues at the rate charged on loans to
38-13 depository institutions by the New York Federal Reserve Bank.
38-14 (c) The interest shall be paid for the period beginning on
38-15 the date the penalty is paid and ending on the date the penalty is
38-16 remitted.
38-17 (d) If the person gave a supersedeas bond and the penalty is
38-18 not upheld by the court, the court shall order, when the court's
38-19 judgment becomes final, the release of the bond.
38-20 (e) If the person gave a supersedeas bond and the amount of
38-21 the penalty is reduced, the court shall order the release of the
38-22 bond after the person pays the reduced amount.
38-23 Sec. 701.511. ADMINISTRATIVE PROCEDURE. A proceeding under
38-24 this subchapter is a contested case under Chapter 2001, Government
38-25 Code.
38-26 SECTION 25. Chapter 462, Acts of the 68th Legislature,
39-1 Regular Session, 1983 (Article 4413(51), Vernon's Texas Civil
39-2 Statutes), is amended by adding Sections 13D and 13E to read as
39-3 follows:
39-4 Sec. 13D. EMERGENCY SUSPENSION. (a) The council or a
39-5 three-member committee of council members designated by the council
39-6 shall temporarily suspend the registration of a registration holder
39-7 if the council or committee determines from the evidence or
39-8 information presented to it that continued practice by the
39-9 registration holder would constitute a continuing and imminent
39-10 threat to the public welfare.
39-11 (b) A registration may be suspended under this section
39-12 without notice or hearing on the complaint if:
39-13 (1) action is taken to initiate proceedings for a
39-14 hearing before the State Office of Administrative Hearings
39-15 simultaneously with the temporary suspension; and
39-16 (2) a hearing is held as soon as practicable under
39-17 this chapter and Chapter 2001, Government Code.
39-18 (c) The State Office of Administrative Hearings shall hold a
39-19 preliminary hearing not later than the 14th day after the date of
39-20 the temporary suspension to determine if there is probable cause to
39-21 believe that a continuing and imminent threat to the public welfare
39-22 still exists. A final hearing on the matter shall be held not
39-23 later than the 61st day after the date of the temporary suspension.
39-24 Sec. 13E. ADMINISTRATIVE PENALTY. (a) The council may
39-25 impose an administrative penalty on a person registered under this
39-26 Act who violates this Act or a rule or order adopted under this
40-1 Act.
40-2 (b) The amount of the administrative penalty may not be less
40-3 than $50 or more than $500 for each violation. Each day a
40-4 violation continues or occurs is a separate violation for the
40-5 purpose of imposing a penalty. The amount shall be based on:
40-6 (1) the seriousness of the violation, including the
40-7 nature, circumstances, extent, and gravity of the violation;
40-8 (2) the economic harm caused by the violation;
40-9 (3) the history of previous violations;
40-10 (4) the amount necessary to deter a future violation;
40-11 (5) efforts to correct the violation; and
40-12 (6) any other matter that justice may require.
40-13 (c) If the executive director determines that a violation
40-14 occurred, the director may issue to the council a report stating:
40-15 (1) the facts on which the determination is based; and
40-16 (2) the director's recommendation on the imposition of
40-17 an administrative penalty, including a recommendation on the amount
40-18 of the penalty.
40-19 (d) Within 14 days after the date the report is issued, the
40-20 executive director shall give written notice of the report to the
40-21 person. The notice must:
40-22 (1) include a brief summary of the alleged violation;
40-23 (2) state the amount of the recommended administrative
40-24 penalty; and
40-25 (3) inform the person of the person's right to a
40-26 hearing on the occurrence of the violation, the amount of the
41-1 penalty, or both.
41-2 (e) Within 10 days after the date the person receives the
41-3 notice, the person in writing may:
41-4 (1) accept the determination and recommended
41-5 administrative penalty of the executive director; or
41-6 (2) make a request for a hearing on the occurrence of
41-7 the violation, the amount of the penalty, or both.
41-8 (f) If the person accepts the determination and recommended
41-9 penalty of the executive director, the council by order shall
41-10 approve the determination and impose the recommended penalty.
41-11 (g) If the person requests a hearing or fails to respond in
41-12 a timely manner to the notice, the executive director shall set a
41-13 hearing and give written notice of the hearing to the person.
41-14 (h) An administrative law judge of the State Office of
41-15 Administrative Hearings shall hold the hearing.
41-16 (i) The administrative law judge shall make findings of fact
41-17 and conclusions of law and promptly issue to the council a proposal
41-18 for a decision about the occurrence of the violation and the amount
41-19 of a proposed administrative penalty.
41-20 (j) Based on the findings of fact, conclusions of law, and
41-21 proposal for decision, the council by order may determine that:
41-22 (1) a violation occurred and impose an administrative
41-23 penalty; or
41-24 (2) a violation did not occur.
41-25 (k) The notice of the council's order given to the person
41-26 must include a statement of the right of the person to judicial
42-1 review of the order.
42-2 (l) Within 30 days after the date the council's order
42-3 becomes final, the person shall:
42-4 (1) pay the administrative penalty; or
42-5 (2) file a petition for judicial review contesting the
42-6 occurrence of the violation, the amount of the penalty, or both.
42-7 (m) Within the 30-day period prescribed by Subsection (l), a
42-8 person who files a petition for judicial review may:
42-9 (1) stay enforcement of the penalty by:
42-10 (A) paying the penalty to the court for
42-11 placement in an escrow account; or
42-12 (B) giving the court a supersedeas bond approved
42-13 by the court that:
42-14 (i) is for the amount of the penalty; and
42-15 (ii) is effective until all judicial
42-16 review of the council's order is final; or
42-17 (2) request the court to stay enforcement of the
42-18 penalty by:
42-19 (A) filing with the court a sworn affidavit of
42-20 the person stating that the person is financially unable to pay the
42-21 penalty and is financially unable to give the supersedeas bond; and
42-22 (B) giving a copy of the affidavit to the
42-23 executive director by certified mail.
42-24 (n) If the executive director receives a copy of an
42-25 affidavit under Subsection (m)(2), the director may file with the
42-26 court, within five days after the date the copy is received, a
43-1 contest to the affidavit.
43-2 (o) The court shall hold a hearing on the facts alleged in
43-3 the affidavit as soon as practicable and shall stay the enforcement
43-4 of the penalty on finding that the alleged facts are true. The
43-5 person who files an affidavit has the burden of proving that the
43-6 person is financially unable to pay the penalty and to give a
43-7 supersedeas bond.
43-8 (p) If the person does not pay the administrative penalty
43-9 and the enforcement of the penalty is not stayed, the penalty may
43-10 be collected. The attorney general may sue to collect the penalty.
43-11 (q) If the court sustains the determination that a violation
43-12 occurred, the court may uphold or reduce the amount of the
43-13 administrative penalty and order the person to pay the full or
43-14 reduced amount of the penalty. If the court does not sustain the
43-15 finding that a violation occurred, the court shall order that a
43-16 penalty is not owed.
43-17 (r) If the person paid the administrative penalty and if the
43-18 amount of the penalty is reduced or the penalty is not upheld by
43-19 the court, the court shall order, when the court's judgment becomes
43-20 final, that the appropriate amount plus accrued interest be
43-21 remitted to the person. The interest accrues at the rate charged
43-22 on loans to depository institutions by the New York Federal Reserve
43-23 Bank. The interest shall be paid for the period beginning on the
43-24 date the penalty is paid and ending on the date the penalty is
43-25 remitted.
43-26 (s) If the person gave a supersedeas bond and the penalty is
44-1 not upheld by the court, the court shall order, when the court's
44-2 judgment becomes final, the release of the bond. If the person
44-3 gave a supersedeas bond and the amount of the penalty is reduced,
44-4 the court shall order the release of the bond after the person pays
44-5 the reduced amount.
44-6 (t) A proceeding under this section is a contested case
44-7 under Chapter 2001, Government Code.
44-8 SECTION 26. (a) The following provisions are repealed:
44-9 (1) Subsections (h) and (i), Section 50.0225, Human
44-10 Resources Code;
44-11 (2) Subsections (h) and (i), Section 11B, Licensed
44-12 Marriage and Family Therapist Act (Article 4512c-1, Vernon's Texas
44-13 Civil Statutes);
44-14 (3) Subsections (h) and (i), Section 5B, Chapter 498,
44-15 Acts of the 62nd Legislature, Regular Session, 1971 (Article 4512d,
44-16 Vernon's Texas Civil Statutes);
44-17 (4) Subsections (h) and (i), Section 16D, Licensed
44-18 Professional Counselor Act (Article 4512g, Vernon's Texas Civil
44-19 Statutes);
44-20 (5) Subsections (h) and (i), Section 16C, Licensed
44-21 Dietitian Act (Article 4512h, Vernon's Texas Civil Statutes);
44-22 (6) Subsections (h) and (i), Section 24A, Chapter 381,
44-23 Acts of the 68th Legislature, Regular Session, 1983 (Article 4512j,
44-24 Vernon's Texas Civil Statutes);
44-25 (7) Subsections (h) and (i), Section 11B, Texas
44-26 Medical Physics Practice Act (Article 4512n, Vernon's Texas Civil
45-1 Statutes);
45-2 (8) Subsections (h) and (i), Section 19A, Licensed
45-3 Perfusionists Act (Article 4529e, Revised Statutes);
45-4 (9) Subsections (h) and (i), Section 1.12C, Chapter
45-5 366, Acts of the 61st Legislature, Regular Session, 1969 (Article
45-6 4566-1.12C, Vernon's Texas Civil Statutes); and
45-7 (10) Subsections (h) and (i), Section 6A, Orthotics
45-8 and Prosthetics Act (Article 8920, Revised Statutes).
45-9 (b) This section takes effect on September 1, 2001, but only
45-10 if the Act of the 77th Legislature, Regular Session, 2001, relating
45-11 to nonsubstantive additions to and corrections in enacted codes,
45-12 does not take effect.
45-13 SECTION 27. (a) The following sections of the Occupations
45-14 Code, as added by the Act of the 77th Legislature, Regular Session,
45-15 2001, relating to nonsubstantive additions to and corrections in
45-16 enacted codes, are repealed:
45-17 (1) Subsections (h) and (i), Section 401.2535;
45-18 (2) Subsections (h) and (i), Section 402.154;
45-19 (3) Subsections (h) and (i), Section 451.110;
45-20 (4) Subsections (h) and (i), Section 502.2045;
45-21 (5) Subsections (h) and (i), Section 503.2545;
45-22 (6) Subsections (h) and (i), Section 505.2545;
45-23 (7) Subsections (h) and (i), Section 602.1525;
45-24 (8) Subsections (h) and (i), Section 603.2041;
45-25 (9) Subsections (h) and (i), Section 605.2021; and
45-26 (10) Subsections (h) and (i), Section 701.2041.
46-1 (b) This section takes effect on September 1, 2001, but only
46-2 if the Act of the 77th Legislature, Regular Session, 2001, relating
46-3 to nonsubstantive additions to and corrections in enacted codes,
46-4 takes effect.
46-5 SECTION 28. Subsections (h) and (i), Section 8C, Chapter
46-6 462, Acts of the 68th Legislature, Regular Session, 1983 (Article
46-7 4413(51), Vernon's Texas Civil Statutes), are repealed.
46-8 SECTION 29. (a) This Act takes effect September 1, 2001.
46-9 (b) The change in law made by this Act to Section 602.302,
46-10 Occupations Code, applies only to an offense committed on or after
46-11 the effective date of this Act. For purposes of this subsection,
46-12 an offense is committed before the effective date of this Act if
46-13 any element of the offense occurs before the effective date. An
46-14 offense committed before the effective date of this Act is governed
46-15 by the law in effect on the date the offense was committed, and the
46-16 former law is continued in effect for that purpose.
46-17 (c) The change in law made by this Act relating to
46-18 imposition of an administrative penalty or civil penalty applies
46-19 only to an act or omission that occurs on or after the effective
46-20 date of this Act. An act or omission that occurs before the
46-21 effective date of this Act is governed by the law in effect on the
46-22 date the act or omission occurred, and the former law is continued
46-23 in effect for that purpose.
_______________________________ _______________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 791 passed the Senate on
April 20, 2001, by the following vote: Yeas 30, Nays 0, one
present not voting; and that the Senate concurred in House
amendments on May 26, 2001, by a viva-voce vote.
_______________________________
Secretary of the Senate
I hereby certify that S.B. No. 791 passed the House, with
amendments, on May 23, 2001, by a non-record vote.
_______________________________
Chief Clerk of the House
Approved:
_______________________________
Date
_______________________________
Governor