By Nelson S.B. No. 791
77R4960 JMM-D
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
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 board or a
2-8 three-member committee of board members designated by the board
2-9 shall temporarily suspend the certificate of registration of a
2-10 certificate holder if the board or committee determines from the
2-11 evidence or information presented to it that continued practice by
2-12 the certificate holder would constitute a continuing and imminent
2-13 threat to the public welfare.
2-14 (b) A certificate of registration may be suspended under
2-15 this section without notice or hearing on the complaint if:
2-16 (1) action is taken to initiate proceedings for a
2-17 hearing before the State Office of Administrative Hearings
2-18 simultaneously with the temporary suspension; and
2-19 (2) a hearing is held as soon as practicable under
2-20 this chapter and Chapter 2001, Government Code.
2-21 (c) The State Office of Administrative Hearings shall hold a
2-22 preliminary hearing not later than the 14th day after the date of
2-23 the temporary suspension to determine if there is probable cause to
2-24 believe that a continuing and imminent threat to the public welfare
2-25 still exists. A final hearing on the matter shall be held not
2-26 later than the 61st day after the date of the temporary suspension.
2-27 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
3-27 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.
4-27 (b) The amount shall be based on:
5-1 (1) the seriousness of the violation, including the
5-2 nature, circumstances, extent, and gravity of the violation;
5-3 (2) the economic harm caused by the violation;
5-4 (3) the history of previous violations;
5-5 (4) the amount necessary to deter a future violation;
5-6 (5) efforts to correct the violation; and
5-7 (6) any other matter that justice may require.
5-8 Sec. 401.553. REPORT AND NOTICE OF VIOLATION AND PENALTY.
5-9 (a) If the commissioner of public health determines that a
5-10 violation occurred, the commissioner may issue to the board a
5-11 report stating:
5-12 (1) the facts on which the determination is based; and
5-13 (2) the commissioner's recommendation on the
5-14 imposition of an administrative penalty, including a recommendation
5-15 on the amount of the penalty.
5-16 (b) Within 14 days after the date the report is issued, the
5-17 commissioner shall give written notice of the report to the person.
5-18 The notice must:
5-19 (1) include a brief summary of the alleged violation;
5-20 (2) state the amount of the recommended administrative
5-21 penalty; and
5-22 (3) inform the person of the person's right to a
5-23 hearing on the occurrence of the violation, the amount of the
5-24 penalty, or both.
5-25 Sec. 401.554. PENALTY TO BE PAID OR HEARING REQUESTED. (a)
5-26 Within 10 days after the date the person receives the notice, the
5-27 person in writing may:
6-1 (1) accept the determination and recommended
6-2 administrative penalty of the commissioner; or
6-3 (2) make a request for a hearing on the occurrence of
6-4 the violation, the amount of the penalty, or both.
6-5 (b) If the person accepts the determination and recommended
6-6 penalty of the commissioner, the board by order shall approve the
6-7 determination and impose the recommended penalty.
6-8 Sec. 401.555. HEARING. (a) If the person requests a hearing
6-9 or fails to respond in a timely manner to the notice, the
6-10 commissioner shall set a hearing and give written notice of the
6-11 hearing to the person.
6-12 (b) An administrative law judge of the State Office of
6-13 Administrative Hearings shall hold the hearing.
6-14 (c) The administrative law judge shall make findings of fact
6-15 and conclusions of law and promptly issue to the board a proposal
6-16 for a decision about the occurrence of the violation and the amount
6-17 of a proposed administrative penalty.
6-18 Sec. 401.556. DECISION BY BOARD. (a) Based on the findings
6-19 of fact, conclusions of law, and proposal for decision, the board
6-20 by order may determine that:
6-21 (1) a violation occurred and impose an administrative
6-22 penalty; or
6-23 (2) a violation did not occur.
6-24 (b) The notice of the board's order given to the person must
6-25 include a statement of the right of the person to judicial review
6-26 of the order.
6-27 Sec. 401.557. OPTIONS FOLLOWING DECISION: PAY OR APPEAL.
7-1 (a) Within 30 days after the date the board's order becomes final,
7-2 the person shall:
7-3 (1) pay the administrative penalty; or
7-4 (2) file a petition for judicial review contesting the
7-5 occurrence of the violation, the amount of the penalty, or both.
7-6 (b) Within the 30-day period prescribed by Subsection (a), a
7-7 person who files a petition for judicial review may:
7-8 (1) stay enforcement of the penalty by:
7-9 (A) paying the penalty to the court for
7-10 placement in an escrow account; or
7-11 (B) giving the court a supersedeas bond approved
7-12 by the court that:
7-13 (i) is for the amount of the penalty; and
7-14 (ii) is effective until all judicial
7-15 review of the board's order is final; or
7-16 (2) request the court to stay enforcement of the
7-17 penalty by:
7-18 (A) filing with the court a sworn affidavit of
7-19 the person stating that the person is financially unable to pay the
7-20 penalty and is financially unable to give the supersedeas bond; and
7-21 (B) giving a copy of the affidavit to the
7-22 executive director by certified mail.
7-23 (c) If the commissioner receives a copy of an affidavit
7-24 under Subsection (b)(2), the commissioner may file with the court,
7-25 within five days after the date the copy is received, a contest to
7-26 the affidavit.
7-27 (d) The court shall hold a hearing on the facts alleged in
8-1 the affidavit as soon as practicable and shall stay the enforcement
8-2 of the penalty on finding that the alleged facts are true. The
8-3 person who files an affidavit has the burden of proving that the
8-4 person is financially unable to pay the penalty and to give a
8-5 supersedeas bond.
8-6 Sec. 401.558. COLLECTION OF PENALTY. (a) If the person does
8-7 not pay the administrative penalty and the enforcement of the
8-8 penalty is not stayed, the penalty may be collected.
8-9 (b) The attorney general may sue to collect the penalty.
8-10 Sec. 401.559. DETERMINATION BY COURT. (a) If the court
8-11 sustains the determination that a violation occurred, the court may
8-12 uphold or reduce the amount of the administrative penalty and order
8-13 the person to pay the full or reduced amount of the penalty.
8-14 (b) If the court does not sustain the finding that a
8-15 violation occurred, the court shall order that a penalty is not
8-16 owed.
8-17 Sec. 401.560. REMITTANCE OF PENALTY AND INTEREST. (a) If
8-18 the person paid the administrative penalty and if the amount of the
8-19 penalty is reduced or the penalty is not upheld by the court, the
8-20 court shall order, when the court's judgment becomes final, that
8-21 the appropriate amount plus accrued interest be remitted to the
8-22 person.
8-23 (b) The interest accrues at the rate charged on loans to
8-24 depository institutions by the New York Federal Reserve Bank.
8-25 (c) The interest shall be paid for the period beginning on
8-26 the date the penalty is paid and ending on the date the penalty is
8-27 remitted.
9-1 (d) If the person gave a supersedeas bond and the penalty is
9-2 not upheld by the court, the court shall order, when the court's
9-3 judgment becomes final, the release of the bond.
9-4 (e) If the person gave a supersedeas bond and the amount of
9-5 the penalty is reduced, the court shall order the release of the
9-6 bond after the person pays the reduced amount.
9-7 Sec. 401.561. ADMINISTRATIVE PROCEDURE. A proceeding under
9-8 this section is a contested case under Chapter 2001, Government
9-9 Code.
9-10 SECTION 6. Subchapter K, Chapter 402, Occupations Code, is
9-11 amended by adding Section 402.504 to read as follows:
9-12 Sec. 402.504. EMERGENCY SUSPENSION. (a) The board or a
9-13 three-member committee of board members designated by the board
9-14 shall temporarily suspend the license or permit of a license or
9-15 permit holder if the board or committee determines from the
9-16 evidence or information presented to it that continued practice by
9-17 the license or permit holder would constitute a continuing and
9-18 imminent threat to the public welfare.
9-19 (b) A license or permit may be suspended under this section
9-20 without notice or hearing on the complaint if:
9-21 (1) action is taken to initiate proceedings for a
9-22 hearing before the State Office of Administrative Hearings
9-23 simultaneously with the temporary suspension; and
9-24 (2) a hearing is held as soon as practicable under
9-25 this chapter and Chapter 2001, Government Code.
9-26 (c) The State Office of Administrative Hearings shall hold a
9-27 preliminary hearing not later than the 14th day after the date of
10-1 the temporary suspension to determine if there is probable cause to
10-2 believe that a continuing and imminent threat to the public welfare
10-3 still exists. A final hearing on the matter shall be held not
10-4 later than the 61st day after the date of the temporary suspension.
10-5 SECTION 7. Subchapter L, Chapter 402, Occupations Code, is
10-6 amended by adding Section 402.553 to read as follows:
10-7 Sec. 402.553. CIVIL PENALTY. (a) A person who violates this
10-8 chapter or a rule or order adopted by the board under this chapter
10-9 is liable for a civil penalty not to exceed $1,000 a day.
10-10 (b) At the request of the board or department, the attorney
10-11 general shall bring an action to recover a civil penalty authorized
10-12 under this section.
10-13 SECTION 8. Subchapter F, Chapter 451, Occupations Code, is
10-14 amended by adding Section 451.255 to read as follows:
10-15 Sec. 451.255. EMERGENCY SUSPENSION. (a) The board or a
10-16 three-member committee of board members designated by the board
10-17 shall temporarily suspend the license of a license holder if the
10-18 board or committee determines from the evidence or information
10-19 presented to it that continued practice by the license holder would
10-20 constitute a continuing and imminent threat to the public welfare.
10-21 (b) A license may be suspended under this section without
10-22 notice or hearing on the complaint if:
10-23 (1) action is taken to initiate proceedings for a
10-24 hearing before the State Office of Administrative Hearings
10-25 simultaneously with the temporary suspension; and
10-26 (2) a hearing is held as soon as practicable under
10-27 this chapter and Chapter 2001, Government Code.
11-1 (c) The State Office of Administrative Hearings shall hold a
11-2 preliminary hearing not later than the 14th day after the date of
11-3 the temporary suspension to determine if there is probable cause to
11-4 believe that a continuing and imminent threat to the public welfare
11-5 still exists. A final hearing on the matter shall be held not
11-6 later than the 61st day after the date of the temporary suspension.
11-7 SECTION 9. Subchapter F, Chapter 455, Occupations Code, is
11-8 amended by adding Section 455.254 to read as follows:
11-9 Sec. 455.254. EMERGENCY SUSPENSION. (a) The board or a
11-10 three-member committee of board members designated by the board
11-11 shall temporarily suspend the certificate of registration of a
11-12 certificate holder if the board or committee determines from the
11-13 evidence or information presented to it that continued practice by
11-14 the certificate holder would constitute a continuing and imminent
11-15 threat to the public welfare.
11-16 (b) A certificate of registration may be suspended under
11-17 this section without notice or hearing on the complaint if:
11-18 (1) action is taken to initiate proceedings for a
11-19 hearing before the State Office of Administrative Hearings
11-20 simultaneously with the temporary suspension; and
11-21 (2) a hearing is held as soon as practicable under
11-22 this chapter and Chapter 2001, Government Code.
11-23 (c) The State Office of Administrative Hearings shall hold a
11-24 preliminary hearing not later than the 14th day after the date of
11-25 the temporary suspension to determine if there is probable cause to
11-26 believe that a continuing and imminent threat to the public welfare
11-27 still exists. A final hearing on the matter shall be held not
12-1 later than the 61st day after the date of the temporary suspension.
12-2 SECTION 10. Subchapter H, Chapter 502, Occupations Code, is
12-3 amended by adding Section 502.356 to read as follows:
12-4 Sec. 502.356. EMERGENCY SUSPENSION. (a) The board or a
12-5 three-member committee of board members designated by the board
12-6 shall temporarily suspend the license of a license holder if the
12-7 board or committee determines from the evidence or information
12-8 presented to it that continued practice by the license holder would
12-9 constitute a continuing and imminent threat to the public welfare.
12-10 (b) A license may be suspended under this section without
12-11 notice or hearing on the complaint if:
12-12 (1) action is taken to initiate proceedings for a
12-13 hearing before the State Office of Administrative Hearings
12-14 simultaneously with the temporary suspension; and
12-15 (2) a hearing is held as soon as practicable under
12-16 this chapter and Chapter 2001, Government Code.
12-17 (c) The State Office of Administrative Hearings shall hold a
12-18 preliminary hearing not later than the 14th day after the date of
12-19 the temporary suspension to determine if there is probable cause to
12-20 believe that a continuing and imminent threat to the public welfare
12-21 still exists. A final hearing on the matter shall be held not
12-22 later than the 61st day after the date of the temporary suspension.
12-23 SECTION 11. Chapter 503, Occupations Code, is amended by
12-24 adding Subchapter K to read as follows:
12-25 SUBCHAPTER K. ADMINISTRATIVE PENALTY
12-26 Sec. 503.501. IMPOSITION OF ADMINISTRATIVE PENALTY. The
12-27 board may impose an administrative penalty on a person licensed
13-1 under this chapter who violates this chapter or a rule or order
13-2 adopted under this chapter.
13-3 Sec. 503.502. AMOUNT OF ADMINISTRATIVE PENALTY. (a) The
13-4 amount of the administrative penalty may not be less than $50 or
13-5 more than $500 for each violation. Each day a violation continues
13-6 or occurs is a separate violation for the purpose of imposing a
13-7 penalty.
13-8 (b) The amount shall be based on:
13-9 (1) the seriousness of the violation, including the
13-10 nature, circumstances, extent, and gravity of the violation;
13-11 (2) the economic harm caused by the violation;
13-12 (3) the history of previous violations;
13-13 (4) the amount necessary to deter a future violation;
13-14 (5) efforts to correct the violation; and
13-15 (6) any other matter that justice may require.
13-16 Sec. 503.503. REPORT AND NOTICE OF VIOLATION AND PENALTY.
13-17 (a) If the commissioner of public health determines that a
13-18 violation occurred, the commissioner may issue to the board a
13-19 report stating:
13-20 (1) the facts on which the determination is based; and
13-21 (2) the commissioner's recommendation on the
13-22 imposition of an administrative penalty, including a recommendation
13-23 on the amount of the penalty.
13-24 (b) Within 14 days after the date the report is issued, the
13-25 commissioner shall give written notice of the report to the person.
13-26 The notice must:
13-27 (1) include a brief summary of the alleged violation;
14-1 (2) state the amount of the recommended administrative
14-2 penalty; and
14-3 (3) inform the person of the person's right to a
14-4 hearing on the occurrence of the violation, the amount of the
14-5 penalty, or both.
14-6 Sec. 503.504. PENALTY TO BE PAID OR HEARING REQUESTED. (a)
14-7 Within 10 days after the date the person receives the notice, the
14-8 person in writing may:
14-9 (1) accept the determination and recommended
14-10 administrative penalty of the commissioner; or
14-11 (2) make a request for a hearing on the occurrence of
14-12 the violation, the amount of the penalty, or both.
14-13 (b) If the person accepts the determination and recommended
14-14 penalty of the commissioner, the board by order shall approve the
14-15 determination and impose the recommended penalty.
14-16 Sec. 503.505. HEARING. (a) If the person requests a hearing
14-17 or fails to respond in a timely manner to the notice, the
14-18 commissioner shall set a hearing and give written notice of the
14-19 hearing to the person.
14-20 (b) An administrative law judge of the State Office of
14-21 Administrative Hearings shall hold the hearing.
14-22 (c) The administrative law judge shall make findings of fact
14-23 and conclusions of law and promptly issue to the board a proposal
14-24 for a decision about the occurrence of the violation and the amount
14-25 of a proposed administrative penalty.
14-26 Sec. 503.506. DECISION BY BOARD. (a) Based on the findings
14-27 of fact, conclusions of law, and proposal for decision, the board
15-1 by order may determine that:
15-2 (1) a violation occurred and impose an administrative
15-3 penalty; or
15-4 (2) a violation did not occur.
15-5 (b) The notice of the board's order given to the person must
15-6 include a statement of the right of the person to judicial review
15-7 of the order.
15-8 Sec. 503.507. OPTIONS FOLLOWING DECISION: PAY OR APPEAL.
15-9 (a) Within 30 days after the date the board's order becomes final,
15-10 the person shall:
15-11 (1) pay the administrative penalty; or
15-12 (2) file a petition for judicial review contesting the
15-13 occurrence of the violation, the amount of the penalty, or both.
15-14 (b) Within the 30-day period prescribed by Subsection (a), a
15-15 person who files a petition for judicial review may:
15-16 (1) stay enforcement of the penalty by:
15-17 (A) paying the penalty to the court for
15-18 placement in an escrow account; or
15-19 (B) giving the court a supersedeas bond approved
15-20 by the court that:
15-21 (i) is for the amount of the penalty; and
15-22 (ii) is effective until all judicial
15-23 review of the board's order is final; or
15-24 (2) request the court to stay enforcement of the
15-25 penalty by:
15-26 (A) filing with the court a sworn affidavit of
15-27 the person stating that the person is financially unable to pay the
16-1 penalty and is financially unable to give the supersedeas bond; and
16-2 (B) giving a copy of the affidavit to the
16-3 commissioner by certified mail.
16-4 (c) If the commissioner receives a copy of an affidavit
16-5 under Subsection (b)(2), the commissioner may file with the court,
16-6 within five days after the date the copy is received, a contest to
16-7 the affidavit.
16-8 (d) The court shall hold a hearing on the facts alleged in
16-9 the affidavit as soon as practicable and shall stay the enforcement
16-10 of the penalty on finding that the alleged facts are true. The
16-11 person who files an affidavit has the burden of proving that the
16-12 person is financially unable to pay the penalty and to give a
16-13 supersedeas bond.
16-14 Sec. 503.508. COLLECTION OF PENALTY. (a) If the person does
16-15 not pay the administrative penalty and the enforcement of the
16-16 penalty is not stayed, the penalty may be collected.
16-17 (b) The attorney general may sue to collect the penalty.
16-18 Sec. 503.509. DETERMINATION BY COURT. (a) If the court
16-19 sustains the determination that a violation occurred, the court may
16-20 uphold or reduce the amount of the administrative penalty and order
16-21 the person to pay the full or reduced amount of the penalty.
16-22 (b) If the court does not sustain the finding that a
16-23 violation occurred, the court shall order that a penalty is not
16-24 owed.
16-25 Sec. 503.510. REMITTANCE OF PENALTY AND INTEREST. (a) If
16-26 the person paid the administrative penalty and if the amount of the
16-27 penalty is reduced or the penalty is not upheld by the court, the
17-1 court shall order, when the court's judgment becomes final, that
17-2 the appropriate amount plus accrued interest be remitted to the
17-3 person.
17-4 (b) The interest accrues at the rate charged on loans to
17-5 depository institutions by the New York Federal Reserve Bank.
17-6 (c) The interest shall be paid for the period beginning on
17-7 the date the penalty is paid and ending on the date the penalty is
17-8 remitted.
17-9 (d) If the person gave a supersedeas bond and the penalty is
17-10 not upheld by the court, the court shall order, when the court's
17-11 judgment becomes final, the release of the bond.
17-12 (e) If the person gave a supersedeas bond and the amount of
17-13 the penalty is reduced, the court shall order the release of the
17-14 bond after the person pays the reduced amount.
17-15 Sec. 503.511. ADMINISTRATIVE PROCEDURE. A proceeding under
17-16 this section is a contested case under Chapter 2001, Government
17-17 Code.
17-18 SECTION 12. Subchapter J, Chapter 505, Occupations Code, is
17-19 amended by adding Section 505.507 to read as follows:
17-20 Sec. 505.507. CRIMINAL PENALTY. (a) A person required to
17-21 hold a license under this chapter commits an offense if the person
17-22 knowingly acts as a social worker without holding a license issued
17-23 under this chapter.
17-24 (b) An offense under Subsection (a) is a Class B
17-25 misdemeanor.
17-26 SECTION 13. Subchapter G, Chapter 601, Occupations Code, is
17-27 amended by adding Section 601.306 to read as follows:
18-1 Sec. 601.306. EMERGENCY SUSPENSION. (a) The board or a
18-2 three-member committee of board members designated by the board
18-3 shall temporarily suspend the certificate of a certificate holder
18-4 if the board or committee determines from the evidence or
18-5 information presented to it that continued practice by the
18-6 certificate holder would constitute a continuing and imminent
18-7 threat to the public welfare.
18-8 (b) A certificate may be suspended under this section
18-9 without notice or hearing on the complaint if:
18-10 (1) action is taken to initiate proceedings for a
18-11 hearing before the State Office of Administrative Hearings
18-12 simultaneously with the temporary suspension; and
18-13 (2) a hearing is held as soon as practicable under
18-14 this chapter and Chapter 2001, Government Code.
18-15 (c) The State Office of Administrative Hearings shall hold a
18-16 preliminary hearing not later than the 14th day after the date of
18-17 the temporary suspension to determine if there is probable cause to
18-18 believe that a continuing and imminent threat to the public welfare
18-19 still exists. A final hearing on the matter shall be held not
18-20 later than the 61st day after the date of the temporary suspension.
18-21 SECTION 14. Subchapter F, Chapter 602, Occupations Code, is
18-22 amended by adding Section 602.254 to read as follows:
18-23 Sec. 602.254. EMERGENCY SUSPENSION. (a) The board or a
18-24 three-member committee of board members designated by the board
18-25 shall temporarily suspend the license of a license holder if the
18-26 board or committee determines from the evidence or information
18-27 presented to it that continued practice by the license holder would
19-1 constitute a continuing and imminent threat to the public welfare.
19-2 (b) A license may be suspended under this section without
19-3 notice or hearing on the complaint if:
19-4 (1) action is taken to initiate proceedings for a
19-5 hearing before the State Office of Administrative Hearings
19-6 simultaneously with the temporary suspension; and
19-7 (2) a hearing is held as soon as practicable under
19-8 this chapter and Chapter 2001, Government Code.
19-9 (c) The State Office of Administrative Hearings shall hold a
19-10 preliminary hearing not later than the 14th day after the date of
19-11 the temporary suspension to determine if there is probable cause to
19-12 believe that a continuing and imminent threat to the public welfare
19-13 still exists. A final hearing on the matter shall be held not
19-14 later than the 61st day after the date of the temporary suspension.
19-15 SECTION 15. Subchapter G, Chapter 602, Occupations Code, is
19-16 amended by adding Section 602.3015 to read as follows:
19-17 Sec. 602.3015. CIVIL PENALTY. (a) A person who violates
19-18 this chapter or a rule or order adopted by the board under this
19-19 chapter is liable for a civil penalty not to exceed $1,000 a day.
19-20 (b) At the request of the board or department, the attorney
19-21 general shall bring an action to recover a civil penalty authorized
19-22 under this section.
19-23 SECTION 16. Section 602.302, Occupations Code, is amended to
19-24 read as follows:
19-25 Sec. 602.302. OFFENSE. (a) A person commits an offense if
19-26 the person [knowingly]:
19-27 (1) practices medical physics without holding a
20-1 license under this chapter;
20-2 (2) practices a specialty of medical physics without
20-3 holding a license for the specialty;
20-4 (3) knowingly practices medical physics in violation
20-5 of this chapter; or
20-6 (4) knowingly [(2)] uses in any manner letters,
20-7 terminology, symbols, or signs to indicate or imply that the person
20-8 is qualified or licensed to practice medical physics in a manner
20-9 for which the person is not licensed under this chapter.
20-10 (b) An offense under this section is a Class A [B]
20-11 misdemeanor.
20-12 SECTION 17. Subchapter I, Chapter 603, Occupations Code, is
20-13 amended by adding Section 603.408 to read as follows:
20-14 Sec. 603.408. EMERGENCY SUSPENSION. (a) The board or a
20-15 three-member committee of board members designated by the board
20-16 shall temporarily suspend the license of a license holder if the
20-17 board or committee determines from the evidence or information
20-18 presented to it that continued practice by the license holder would
20-19 constitute a continuing and imminent threat to the public welfare.
20-20 (b) A license may be suspended under this section without
20-21 notice or hearing on the complaint if:
20-22 (1) action is taken to initiate proceedings for a
20-23 hearing before the State Office of Administrative Hearings
20-24 simultaneously with the temporary suspension; and
20-25 (2) a hearing is held as soon as practicable under
20-26 this chapter and Chapter 2001, Government Code.
20-27 (c) The State Office of Administrative Hearings shall hold a
21-1 preliminary hearing not later than the 14th day after the date of
21-2 the temporary suspension to determine if there is probable cause to
21-3 believe that a continuing and imminent threat to the public welfare
21-4 still exists. A final hearing on the matter shall be held not
21-5 later than the 61st day after the date of the temporary suspension.
21-6 SECTION 18. Subchapter J, Chapter 603, Occupations Code, is
21-7 amended by adding Section 603.4515 to read as follows:
21-8 Sec. 603.4515. CIVIL PENALTY. (a) A person who violates
21-9 this chapter or a rule or order adopted by the board under this
21-10 chapter is liable for a civil penalty not to exceed $1,000 a day.
21-11 (b) At the request of the board or department, the attorney
21-12 general shall bring an action to recover a civil penalty authorized
21-13 under this section.
21-14 SECTION 19. Chapter 603, Occupations Code, is amended by
21-15 adding Subchapter K to read as follows:
21-16 SUBCHAPTER K. ADMINISTRATIVE PENALTY
21-17 Sec. 603.501. IMPOSITION OF ADMINISTRATIVE PENALTY. The
21-18 board may impose an administrative penalty on a person licensed
21-19 under this chapter who violates this chapter or a rule or order
21-20 adopted under this chapter.
21-21 Sec. 603.502. AMOUNT OF ADMINISTRATIVE PENALTY. (a) The
21-22 amount of the administrative penalty may not be less than $50 or
21-23 more than $500 for each violation. Each day a violation continues
21-24 or occurs is a separate violation for the purpose of imposing a
21-25 penalty.
21-26 (b) The amount shall be based on:
21-27 (1) the seriousness of the violation, including the
22-1 nature, circumstances, extent, and gravity of the violation;
22-2 (2) the economic harm caused by the violation;
22-3 (3) the history of previous violations;
22-4 (4) the amount necessary to deter a future violation;
22-5 (5) efforts to correct the violation; and
22-6 (6) any other matter that justice may require.
22-7 Sec. 603.503. REPORT AND NOTICE OF VIOLATION AND PENALTY.
22-8 (a) If the commissioner determines that a violation occurred, the
22-9 commissioner may issue to the board a report stating:
22-10 (1) the facts on which the determination is based; and
22-11 (2) the commissioner's recommendation on the
22-12 imposition of an administrative penalty, including a recommendation
22-13 on the amount of the penalty.
22-14 (b) Within 14 days after the date the report is issued, the
22-15 commissioner shall give written notice of the report to the person.
22-16 The notice must:
22-17 (1) include a brief summary of the alleged violation;
22-18 (2) state the amount of the recommended administrative
22-19 penalty; and
22-20 (3) inform the person of the person's right to a
22-21 hearing on the occurrence of the violation, the amount of the
22-22 penalty, or both.
22-23 Sec. 603.504. PENALTY TO BE PAID OR HEARING REQUESTED. (a)
22-24 Within 10 days after the date the person receives the notice, the
22-25 person in writing may:
22-26 (1) accept the determination and recommended
22-27 administrative penalty of the commissioner; or
23-1 (2) make a request for a hearing on the occurrence of
23-2 the violation, the amount of the penalty, or both.
23-3 (b) If the person accepts the determination and recommended
23-4 penalty of the commissioner, the board by order shall approve the
23-5 determination and impose the recommended penalty.
23-6 Sec. 603.505. HEARING. (a) If the person requests a hearing
23-7 or fails to respond in a timely manner to the notice, the
23-8 commissioner shall set a hearing and give written notice of the
23-9 hearing to the person.
23-10 (b) An administrative law judge of the State Office of
23-11 Administrative Hearings shall hold the hearing.
23-12 (c) The administrative law judge shall make findings of fact
23-13 and conclusions of law and promptly issue to the board a proposal
23-14 for a decision about the occurrence of the violation and the amount
23-15 of a proposed administrative penalty.
23-16 Sec. 603.506. DECISION BY BOARD. (a) Based on the findings
23-17 of fact, conclusions of law, and proposal for decision, the board
23-18 by order may determine that:
23-19 (1) a violation occurred and impose an administrative
23-20 penalty; or
23-21 (2) a violation did not occur.
23-22 (b) The notice of the board's order given to the person must
23-23 include a statement of the right of the person to judicial review
23-24 of the order.
23-25 Sec. 603.507. OPTIONS FOLLOWING DECISION: PAY OR APPEAL.
23-26 (a) Within 30 days after the date the board's order becomes final,
23-27 the person shall:
24-1 (1) pay the administrative penalty; or
24-2 (2) file a petition for judicial review contesting the
24-3 occurrence of the violation, the amount of the penalty, or both.
24-4 (b) Within the 30-day period prescribed by Subsection (a), a
24-5 person who files a petition for judicial review may:
24-6 (1) stay enforcement of the penalty by:
24-7 (A) paying the penalty to the court for
24-8 placement in an escrow account; or
24-9 (B) giving the court a supersedeas bond approved
24-10 by the court that:
24-11 (i) is for the amount of the penalty; and
24-12 (ii) is effective until all judicial
24-13 review of the board's order is final; or
24-14 (2) request the court to stay enforcement of the
24-15 penalty by:
24-16 (A) filing with the court a sworn affidavit of
24-17 the person stating that the person is financially unable to pay the
24-18 penalty and is financially unable to give the supersedeas bond; and
24-19 (B) giving a copy of the affidavit to the
24-20 executive director by certified mail.
24-21 (c) If the commissioner receives a copy of an affidavit
24-22 under Subsection (b)(2), the commissioner may file with the court,
24-23 within five days after the date the copy is received, a contest to
24-24 the affidavit.
24-25 (d) The court shall hold a hearing on the facts alleged in
24-26 the affidavit as soon as practicable and shall stay the enforcement
24-27 of the penalty on finding that the alleged facts are true. The
25-1 person who files an affidavit has the burden of proving that the
25-2 person is financially unable to pay the penalty and to give a
25-3 supersedeas bond.
25-4 Sec. 603.508. COLLECTION OF PENALTY. (a) If the person does
25-5 not pay the administrative penalty and the enforcement of the
25-6 penalty is not stayed, the penalty may be collected.
25-7 (b) The attorney general may sue to collect the penalty.
25-8 Sec. 603.509. DETERMINATION BY COURT. (a) If the court
25-9 sustains the determination that a violation occurred, the court may
25-10 uphold or reduce the amount of the administrative penalty and order
25-11 the person to pay the full or reduced amount of the penalty.
25-12 (b) If the court does not sustain the finding that a
25-13 violation occurred, the court shall order that a penalty is not
25-14 owed.
25-15 Sec. 603.510. REMITTANCE OF PENALTY AND INTEREST. (a) If
25-16 the person paid the administrative penalty and if the amount of the
25-17 penalty is reduced or the penalty is not upheld by the court, the
25-18 court shall order, when the court's judgment becomes final, that
25-19 the appropriate amount plus accrued interest be remitted to the
25-20 person.
25-21 (b) The interest accrues at the rate charged on loans to
25-22 depository institutions by the New York Federal Reserve Bank.
25-23 (c) The interest shall be paid for the period beginning on
25-24 the date the penalty is paid and ending on the date the penalty is
25-25 remitted.
25-26 (d) If the person gave a supersedeas bond and the penalty is
25-27 not upheld by the court, the court shall order, when the court's
26-1 judgment becomes final, the release of the bond.
26-2 (e) If the person gave a supersedeas bond and the amount of
26-3 the penalty is reduced, the court shall order the release of the
26-4 bond after the person pays the reduced amount.
26-5 Sec. 603.511. ADMINISTRATIVE PROCEDURE. A proceeding under
26-6 this section is a contested case under Chapter 2001, Government
26-7 Code.
26-8 SECTION 20. Subchapter H, Chapter 605, Occupations Code, is
26-9 amended by adding Section 605.3535 to read as follows:
26-10 Sec. 605.3535. EMERGENCY SUSPENSION. (a) The board or a
26-11 three-member committee of board members designated by the board
26-12 shall temporarily suspend the license of a license holder if the
26-13 board or committee determines from the evidence or information
26-14 presented to it that continued practice by the license holder would
26-15 constitute a continuing and imminent threat to the public welfare.
26-16 (b) A license may be suspended under this section without
26-17 notice or hearing on the complaint if:
26-18 (1) action is taken to initiate proceedings for a
26-19 hearing before the State Office of Administrative Hearings
26-20 simultaneously with the temporary suspension; and
26-21 (2) a hearing is held as soon as practicable under
26-22 this chapter and Chapter 2001, Government Code.
26-23 (c) The State Office of Administrative Hearings shall hold a
26-24 preliminary hearing not later than the 14th day after the date of
26-25 the temporary suspension to determine if there is probable cause to
26-26 believe that a continuing and imminent threat to the public welfare
26-27 still exists. A final hearing on the matter shall be held not
27-1 later than the 61st day after the date of the temporary suspension.
27-2 SECTION 21. Subchapter H, Chapter 605, Occupations Code, is
27-3 amended by adding Section 605.356 to read as follows:
27-4 Sec. 605.356. CRIMINAL PENALTY. (a) A person required to
27-5 hold a license under this chapter commits an offense if the person
27-6 knowingly practices, attempts to practice, or offers to practice
27-7 orthotics or prosthetics without holding a license issued under
27-8 this chapter.
27-9 (b) An offense under Subsection (a) is a Class B
27-10 misdemeanor.
27-11 SECTION 22. Chapter 605, Occupations Code, is amended by
27-12 adding Subchapter I to read as follows:
27-13 SUBCHAPTER I. ADMINISTRATIVE PENALTY
27-14 Sec. 605.401. IMPOSITION OF ADMINISTRATIVE PENALTY. The
27-15 board may impose an administrative penalty on a person licensed
27-16 under this chapter who violates this chapter or a rule or order
27-17 adopted under this chapter.
27-18 Sec. 605.402. AMOUNT OF ADMINISTRATIVE PENALTY. (a) The
27-19 amount of the administrative penalty may not be less than $50 or
27-20 more than $500 for each violation. Each day a violation continues
27-21 or occurs is a separate violation for the purpose of imposing a
27-22 penalty.
27-23 (b) The amount shall be based on:
27-24 (1) the seriousness of the violation, including the
27-25 nature, circumstances, extent, and gravity of the violation;
27-26 (2) the economic harm caused by the violation;
27-27 (3) the history of previous violations;
28-1 (4) the amount necessary to deter a future violation;
28-2 (5) efforts to correct the violation; and
28-3 (6) any other matter that justice may require.
28-4 Sec. 605.403. REPORT AND NOTICE OF VIOLATION AND PENALTY.
28-5 (a) If the executive director determines that a violation occurred,
28-6 the director may issue to the board a report stating:
28-7 (1) the facts on which the determination is based; and
28-8 (2) the director's recommendation on the imposition of
28-9 an administrative penalty, including a recommendation on the amount
28-10 of the penalty.
28-11 (b) Within 14 days after the date the report is issued, the
28-12 executive director shall give written notice of the report to the
28-13 person. The notice must:
28-14 (1) include a brief summary of the alleged violation;
28-15 (2) state the amount of the recommended administrative
28-16 penalty; and
28-17 (3) inform the person of the person's right to a
28-18 hearing on the occurrence of the violation, the amount of the
28-19 penalty, or both.
28-20 Sec. 605.404. PENALTY TO BE PAID OR HEARING REQUESTED. (a)
28-21 Within 10 days after the date the person receives the notice, the
28-22 person in writing may:
28-23 (1) accept the determination and recommended
28-24 administrative penalty of the executive director; or
28-25 (2) make a request for a hearing on the occurrence of
28-26 the violation, the amount of the penalty, or both.
28-27 (b) If the person accepts the determination and recommended
29-1 penalty of the executive director, the board by order shall approve
29-2 the determination and impose the recommended penalty.
29-3 Sec. 605.405. HEARING. (a) If the person requests a hearing
29-4 or fails to respond in a timely manner to the notice, the executive
29-5 director shall set a hearing and give written notice of the hearing
29-6 to the person.
29-7 (b) An administrative law judge of the State Office of
29-8 Administrative Hearings shall hold the hearing.
29-9 (c) The administrative law judge shall make findings of fact
29-10 and conclusions of law and promptly issue to the board a proposal
29-11 for a decision about the occurrence of the violation and the amount
29-12 of a proposed administrative penalty.
29-13 Sec. 605.406. DECISION BY BOARD. (a) Based on the findings
29-14 of fact, conclusions of law, and proposal for decision, the board
29-15 by order may determine that:
29-16 (1) a violation occurred and impose an administrative
29-17 penalty; or
29-18 (2) a violation did not occur.
29-19 (b) The notice of the board's order given to the person must
29-20 include a statement of the right of the person to judicial review
29-21 of the order.
29-22 Sec. 605.407. OPTIONS FOLLOWING DECISION: PAY OR APPEAL.
29-23 (a) Within 30 days after the date the board's order becomes final,
29-24 the person shall:
29-25 (1) pay the administrative penalty; or
29-26 (2) file a petition for judicial review contesting the
29-27 occurrence of the violation, the amount of the penalty, or both.
30-1 (b) Within the 30-day period prescribed by Subsection (a), a
30-2 person who files a petition for judicial review may:
30-3 (1) stay enforcement of the penalty by:
30-4 (A) paying the penalty to the court for
30-5 placement in an escrow account; or
30-6 (B) giving the court a supersedeas bond approved
30-7 by the court that:
30-8 (i) is for the amount of the penalty; and
30-9 (ii) is effective until all judicial
30-10 review of the board's order is final; or
30-11 (2) request the court to stay enforcement of the
30-12 penalty by:
30-13 (A) filing with the court a sworn affidavit of
30-14 the person stating that the person is financially unable to pay the
30-15 penalty and is financially unable to give the supersedeas bond; and
30-16 (B) giving a copy of the affidavit to the
30-17 executive director by certified mail.
30-18 (c) If the executive director receives a copy of an
30-19 affidavit under Subsection (b)(2), the director may file with the
30-20 court, within five days after the date the copy is received, a
30-21 contest to the affidavit.
30-22 (d) The court shall hold a hearing on the facts alleged in
30-23 the affidavit as soon as practicable and shall stay the enforcement
30-24 of the penalty on finding that the alleged facts are true. The
30-25 person who files an affidavit has the burden of proving that the
30-26 person is financially unable to pay the penalty and to give a
30-27 supersedeas bond.
31-1 Sec. 605.408. COLLECTION OF PENALTY. (a) If the person does
31-2 not pay the administrative penalty and the enforcement of the
31-3 penalty is not stayed, the penalty may be collected.
31-4 (b) The attorney general may sue to collect the penalty.
31-5 Sec. 605.409. DETERMINATION BY COURT. (a) If the court
31-6 sustains the determination that a violation occurred, the court may
31-7 uphold or reduce the amount of the administrative penalty and order
31-8 the person to pay the full or reduced amount of the penalty.
31-9 (b) If the court does not sustain the finding that a
31-10 violation occurred, the court shall order that a penalty is not
31-11 owed.
31-12 Sec. 605.410. REMITTANCE OF PENALTY AND INTEREST. (a) If
31-13 the person paid the administrative penalty and if the amount of the
31-14 penalty is reduced or the penalty is not upheld by the court, the
31-15 court shall order, when the court's judgment becomes final, that
31-16 the appropriate amount plus accrued interest be remitted to the
31-17 person.
31-18 (b) The interest accrues at the rate charged on loans to
31-19 depository institutions by the New York Federal Reserve Bank.
31-20 (c) The interest shall be paid for the period beginning on
31-21 the date the penalty is paid and ending on the date the penalty is
31-22 remitted.
31-23 (d) If the person gave a supersedeas bond and the penalty is
31-24 not upheld by the court, the court shall order, when the court's
31-25 judgment becomes final, the release of the bond.
31-26 (e) If the person gave a supersedeas bond and the amount of
31-27 the penalty is reduced, the court shall order the release of the
32-1 bond after the person pays the reduced amount.
32-2 Sec. 605.411. ADMINISTRATIVE PROCEDURE. A proceeding under
32-3 this section is a contested case under Chapter 2001, Government
32-4 Code.
32-5 SECTION 23. Subchapter I, Chapter 701, Occupations Code, is
32-6 amended by adding Section 701.408 to read as follows:
32-7 Sec. 701.408. EMERGENCY SUSPENSION. (a) The board or a
32-8 three-member committee of board members designated by the board
32-9 shall temporarily suspend the license of a license holder if the
32-10 board or committee determines from the evidence or information
32-11 presented to it that continued practice by the license holder would
32-12 constitute a continuing and imminent threat to the public welfare.
32-13 (b) A license may be suspended under this section without
32-14 notice or hearing on the complaint if:
32-15 (1) action is taken to initiate proceedings for a
32-16 hearing before the State Office of Administrative Hearings
32-17 simultaneously with the temporary suspension; and
32-18 (2) a hearing is held as soon as practicable under
32-19 this chapter and Chapter 2001, Government Code.
32-20 (c) The State Office of Administrative Hearings shall hold a
32-21 preliminary hearing not later than the 14th day after the date of
32-22 the temporary suspension to determine if there is probable cause to
32-23 believe that a continuing and imminent threat to the public welfare
32-24 still exists. A final hearing on the matter shall be held not
32-25 later than the 61st day after the date of the temporary suspension.
32-26 SECTION 24. Chapter 701, Occupations Code, is amended by
32-27 adding Subchapter K to read as follows:
33-1 SUBCHAPTER K. ADMINISTRATIVE PENALTY
33-2 Sec. 701.501. IMPOSITION OF ADMINISTRATIVE PENALTY. The
33-3 board may impose an administrative penalty on a person licensed
33-4 under this chapter who violates this chapter or a rule or order
33-5 adopted under this chapter.
33-6 Sec. 701.502. AMOUNT OF ADMINISTRATIVE PENALTY. (a) The
33-7 amount of the administrative penalty may not be less than $50 or
33-8 more than $500 for each violation. Each day a violation continues
33-9 or occurs is a separate violation for the purpose of imposing a
33-10 penalty.
33-11 (b) The amount shall be based on:
33-12 (1) the seriousness of the violation, including the
33-13 nature, circumstances, extent, and gravity of the violation;
33-14 (2) the economic harm caused by the violation;
33-15 (3) the history of previous violations;
33-16 (4) the amount necessary to deter a future violation;
33-17 (5) efforts to correct the violation; and
33-18 (6) any other matter that justice may require.
33-19 Sec. 701.503. REPORT AND NOTICE OF VIOLATION AND PENALTY.
33-20 (a) If the commissioner determines that a violation occurred, the
33-21 commissioner may issue to the board a report stating:
33-22 (1) the facts on which the determination is based; and
33-23 (2) the commissioner's recommendation on the
33-24 imposition of an administrative penalty, including a recommendation
33-25 on the amount of the penalty.
33-26 (b) Within 14 days after the date the report is issued, the
33-27 commissioner shall give written notice of the report to the person.
34-1 The notice must:
34-2 (1) include a brief summary of the alleged violation;
34-3 (2) state the amount of the recommended administrative
34-4 penalty; and
34-5 (3) inform the person of the person's right to a
34-6 hearing on the occurrence of the violation, the amount of the
34-7 penalty, or both.
34-8 Sec. 701.504. PENALTY TO BE PAID OR HEARING REQUESTED. (a)
34-9 Within 10 days after the date the person receives the notice, the
34-10 person in writing may:
34-11 (1) accept the determination and recommended
34-12 administrative penalty of the commissioner; or
34-13 (2) make a request for a hearing on the occurrence of
34-14 the violation, the amount of the penalty, or both.
34-15 (b) If the person accepts the determination and recommended
34-16 penalty of the commissioner, the board by order shall approve the
34-17 determination and impose the recommended penalty.
34-18 Sec. 701.505. HEARING. (a) If the person requests a hearing
34-19 or fails to respond in a timely manner to the notice, the
34-20 commissioner shall set a hearing and give written notice of the
34-21 hearing to the person.
34-22 (b) An administrative law judge of the State Office of
34-23 Administrative Hearings shall hold the hearing.
34-24 (c) The administrative law judge shall make findings of fact
34-25 and conclusions of law and promptly issue to the board a proposal
34-26 for a decision about the occurrence of the violation and the amount
34-27 of a proposed administrative penalty.
35-1 Sec. 701.506. DECISION BY BOARD. (a) Based on the findings
35-2 of fact, conclusions of law, and proposal for decision, the board
35-3 by order may determine that:
35-4 (1) a violation occurred and impose an administrative
35-5 penalty; or
35-6 (2) a violation did not occur.
35-7 (b) The notice of the board's order given to the person must
35-8 include a statement of the right of the person to judicial review
35-9 of the order.
35-10 Sec. 701.507. OPTIONS FOLLOWING DECISION: PAY OR APPEAL.
35-11 (a) Within 30 days after the date the board's order becomes final,
35-12 the person shall:
35-13 (1) pay the administrative penalty; or
35-14 (2) file a petition for judicial review contesting the
35-15 occurrence of the violation, the amount of the penalty, or both.
35-16 (b) Within the 30-day period prescribed by Subsection (a), a
35-17 person who files a petition for judicial review may:
35-18 (1) stay enforcement of the penalty by:
35-19 (A) paying the penalty to the court for
35-20 placement in an escrow account; or
35-21 (B) giving the court a supersedeas bond approved
35-22 by the court that:
35-23 (i) is for the amount of the penalty; and
35-24 (ii) is effective until all judicial
35-25 review of the board's order is final; or
35-26 (2) request the court to stay enforcement of the
35-27 penalty by:
36-1 (A) filing with the court a sworn affidavit of
36-2 the person stating that the person is financially unable to pay the
36-3 penalty and is financially unable to give the supersedeas bond; and
36-4 (B) giving a copy of the affidavit to the
36-5 executive director by certified mail.
36-6 (c) If the commissioner receives a copy of an affidavit
36-7 under Subsection (b)(2), the commissioner may file with the court,
36-8 within five days after the date the copy is received, a contest to
36-9 the affidavit.
36-10 (d) The court shall hold a hearing on the facts alleged in
36-11 the affidavit as soon as practicable and shall stay the enforcement
36-12 of the penalty on finding that the alleged facts are true. The
36-13 person who files an affidavit has the burden of proving that the
36-14 person is financially unable to pay the penalty and to give a
36-15 supersedeas bond.
36-16 Sec. 701.508. COLLECTION OF PENALTY. (a) If the person does
36-17 not pay the administrative penalty and the enforcement of the
36-18 penalty is not stayed, the penalty may be collected.
36-19 (b) The attorney general may sue to collect the penalty.
36-20 Sec. 701.509. DETERMINATION BY COURT. (a) If the court
36-21 sustains the determination that a violation occurred, the court may
36-22 uphold or reduce the amount of the administrative penalty and order
36-23 the person to pay the full or reduced amount of the penalty.
36-24 (b) If the court does not sustain the finding that a
36-25 violation occurred, the court shall order that a penalty is not
36-26 owed.
36-27 Sec. 701.510. REMITTANCE OF PENALTY AND INTEREST. (a) If
37-1 the person paid the administrative penalty and if the amount of the
37-2 penalty is reduced or the penalty is not upheld by the court, the
37-3 court shall order, when the court's judgment becomes final, that
37-4 the appropriate amount plus accrued interest be remitted to the
37-5 person.
37-6 (b) The interest accrues at the rate charged on loans to
37-7 depository institutions by the New York Federal Reserve Bank.
37-8 (c) The interest shall be paid for the period beginning on
37-9 the date the penalty is paid and ending on the date the penalty is
37-10 remitted.
37-11 (d) If the person gave a supersedeas bond and the penalty is
37-12 not upheld by the court, the court shall order, when the court's
37-13 judgment becomes final, the release of the bond.
37-14 (e) If the person gave a supersedeas bond and the amount of
37-15 the penalty is reduced, the court shall order the release of the
37-16 bond after the person pays the reduced amount.
37-17 Sec. 701.511. ADMINISTRATIVE PROCEDURE. A proceeding under
37-18 this section is a contested case under Chapter 2001, Government
37-19 Code.
37-20 SECTION 25. Chapter 462, Acts of the 68th Legislature,
37-21 Regular Session, 1983 (Article 4413(51), Vernon's Texas Civil
37-22 Statutes), is amended by adding Sections 13D and 13E to read as
37-23 follows:
37-24 Sec. 13D. EMERGENCY SUSPENSION. (a) The council or a
37-25 three-member committee of council members designated by the council
37-26 shall temporarily suspend the registration of a registration holder
37-27 if the council or committee determines from the evidence or
38-1 information presented to it that continued practice by the
38-2 registration holder would constitute a continuing and imminent
38-3 threat to the public welfare.
38-4 (b) A registration may be suspended under this section
38-5 without notice or hearing on the complaint if:
38-6 (1) action is taken to initiate proceedings for a
38-7 hearing before the State Office of Administrative Hearings
38-8 simultaneously with the temporary suspension; and
38-9 (2) a hearing is held as soon as practicable under
38-10 this chapter and Chapter 2001, Government Code.
38-11 (c) The State Office of Administrative Hearings shall hold a
38-12 preliminary hearing not later than the 14th day after the date of
38-13 the temporary suspension to determine if there is probable cause to
38-14 believe that a continuing and imminent threat to the public welfare
38-15 still exists. A final hearing on the matter shall be held not
38-16 later than the 61st day after the date of the temporary suspension.
38-17 Sec. 13E. ADMINISTRATIVE PENALTY. (a) The council may
38-18 impose an administrative penalty on a person registered under this
38-19 Act who violates this Act or a rule or order adopted under this
38-20 Act.
38-21 (b) The amount of the administrative penalty may not be less
38-22 than $50 or more than $500 for each violation. Each day a
38-23 violation continues or occurs is a separate violation for the
38-24 purpose of imposing a penalty. The amount shall be based on:
38-25 (1) the seriousness of the violation, including the
38-26 nature, circumstances, extent, and gravity of the violation;
38-27 (2) the economic harm caused by the violation;
39-1 (3) the history of previous violations;
39-2 (4) the amount necessary to deter a future violation;
39-3 (5) efforts to correct the violation; and
39-4 (6) any other matter that justice may require.
39-5 (c) If the executive director determines that a violation
39-6 occurred, the director may issue to the council a report stating:
39-7 (1) the facts on which the determination is based; and
39-8 (2) the director's recommendation on the imposition of
39-9 an administrative penalty, including a recommendation on the amount
39-10 of the penalty.
39-11 (d) Within 14 days after the date the report is issued, the
39-12 executive director shall give written notice of the report to the
39-13 person. The notice must:
39-14 (1) include a brief summary of the alleged violation;
39-15 (2) state the amount of the recommended administrative
39-16 penalty; and
39-17 (3) inform the person of the person's right to a
39-18 hearing on the occurrence of the violation, the amount of the
39-19 penalty, or both.
39-20 (e) Within 10 days after the date the person receives the
39-21 notice, the person in writing may:
39-22 (1) accept the determination and recommended
39-23 administrative penalty of the executive director; or
39-24 (2) make a request for a hearing on the occurrence of
39-25 the violation, the amount of the penalty, or both.
39-26 (f) If the person accepts the determination and recommended
39-27 penalty of the executive director, the council by order shall
40-1 approve the determination and impose the recommended penalty.
40-2 (g) If the person requests a hearing or fails to respond in
40-3 a timely manner to the notice, the executive director shall set a
40-4 hearing and give written notice of the hearing to the person.
40-5 (h) An administrative law judge of the State Office of
40-6 Administrative Hearings shall hold the hearing.
40-7 (i) The administrative law judge shall make findings of fact
40-8 and conclusions of law and promptly issue to the board a proposal
40-9 for a decision about the occurrence of the violation and the amount
40-10 of a proposed administrative penalty.
40-11 (j) Based on the findings of fact, conclusions of law, and
40-12 proposal for decision, the council by order may determine that:
40-13 (1) a violation occurred and impose an administrative
40-14 penalty; or
40-15 (2) a violation did not occur.
40-16 (k) The notice of the council's order given to the person
40-17 must include a statement of the right of the person to judicial
40-18 review of the order.
40-19 (l) Within 30 days after the date the council's order
40-20 becomes final, the person shall:
40-21 (1) pay the administrative penalty; or
40-22 (2) file a petition for judicial review contesting the
40-23 occurrence of the violation, the amount of the penalty, or both.
40-24 (m) Within the 30-day period prescribed by Subsection (l), a
40-25 person who files a petition for judicial review may:
40-26 (1) stay enforcement of the penalty by:
40-27 (A) paying the penalty to the court for
41-1 placement in an escrow account; or
41-2 (B) giving the court a supersedeas bond approved
41-3 by the court that:
41-4 (i) is for the amount of the penalty; and
41-5 (ii) is effective until all judicial
41-6 review of the council's order is final; or
41-7 (2) request the court to stay enforcement of the
41-8 penalty by:
41-9 (A) filing with the court a sworn affidavit of
41-10 the person stating that the person is financially unable to pay the
41-11 penalty and is financially unable to give the supersedeas bond; and
41-12 (B) giving a copy of the affidavit to the
41-13 executive director by certified mail.
41-14 (n) If the executive director receives a copy of an
41-15 affidavit under Subsection (m)(2), the director may file with the
41-16 court, within five days after the date the copy is received, a
41-17 contest to the affidavit.
41-18 (o) The court shall hold a hearing on the facts alleged in
41-19 the affidavit as soon as practicable and shall stay the enforcement
41-20 of the penalty on finding that the alleged facts are true. The
41-21 person who files an affidavit has the burden of proving that the
41-22 person is financially unable to pay the penalty and to give a
41-23 supersedeas bond.
41-24 (p) If the person does not pay the administrative penalty
41-25 and the enforcement of the penalty is not stayed, the penalty may
41-26 be collected. The attorney general may sue to collect the penalty.
41-27 (q) If the court sustains the determination that a violation
42-1 occurred, the court may uphold or reduce the amount of the
42-2 administrative penalty and order the person to pay the full or
42-3 reduced amount of the penalty. If the court does not sustain the
42-4 finding that a violation occurred, the court shall order that a
42-5 penalty is not owed.
42-6 (r) If the person paid the administrative penalty and if the
42-7 amount of the penalty is reduced or the penalty is not upheld by
42-8 the court, the court shall order, when the court's judgment becomes
42-9 final, that the appropriate amount plus accrued interest be
42-10 remitted to the person. The interest accrues at the rate charged
42-11 on loans to depository institutions by the New York Federal Reserve
42-12 Bank. The interest shall be paid for the period beginning on the
42-13 date the penalty is paid and ending on the date the penalty is
42-14 remitted.
42-15 (s) If the person gave a supersedeas bond and the penalty is
42-16 not upheld by the court, the court shall order, when the court's
42-17 judgment becomes final, the release of the bond. If the person
42-18 gave a supersedeas bond and the amount of the penalty is reduced,
42-19 the court shall order the release of the bond after the person pays
42-20 the reduced amount.
42-21 (t) A proceeding under this section is a contested case
42-22 under Chapter 2001, Government Code.
42-23 SECTION 26. (a) This Act takes effect September 1, 2001.
42-24 (b) The change in law made by this Act to Section 602.302,
42-25 Occupations Code, applies only to an offense committed on or after
42-26 the effective date of this Act. For purposes of this subsection,
42-27 an offense is committed before the effective date of this Act if
43-1 any element of the offense occurs before the effective date. An
43-2 offense committed before the effective date of this Act is governed
43-3 by the law in effect on the date the offense was committed, and the
43-4 former law is continued in effect for that purpose.
43-5 (c) The change in law made by this Act relating to
43-6 imposition of an administrative penalty or civil penalty applies
43-7 only to an act or omission that occurs on or after the effective
43-8 date of this Act. An act or omission that occurs before the
43-9 effective date of this Act is governed by the law in effect on the
43-10 date the act or omission occurred, and the former law is continued
43-11 in effect for that purpose.