By: Lindsay S.B. No. 1412
2001S0759/1
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the inspection of, and enforcement by certain county
1-3 attorneys of regulations relating to, nursing homes and
1-4 intermediate care facilities by certain county attorneys.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Subsections (a), (b), and (c), Section 242.063,
1-7 Health and Safety Code, are amended to read as follows:
1-8 (a) The department may petition a district court for:
1-9 (1) a temporary restraining order to restrain a person
1-10 from a violation or threatened violation of the standards imposed
1-11 under this chapter or any other law affecting residents if the
1-12 department reasonably believes that the violation or threatened
1-13 violation creates an immediate threat to the health and safety of a
1-14 resident; [and]
1-15 (2) an injunction to restrain a person from a
1-16 violation or threatened violation of the standards imposed under
1-17 this chapter or by any other law affecting residents if the
1-18 department reasonably believes that the violation or threatened
1-19 violation creates a threat to the health and safety of a resident;
1-20 and
1-21 (3) a temporary restraining order to restrain a person
1-22 from denying access by the department to the institution for
1-23 inspection purposes if the department reasonably believes that the
1-24 institution is required to be licensed and that it is operating
1-25 without a license.
2-1 (b) A district court, on petition of the department, may by
2-2 injunction or temporary restraining order:
2-3 (1) prohibit a person from violating the standards or
2-4 licensing requirements prescribed by this chapter;
2-5 (2) restrain or prevent the establishment, conduct,
2-6 management, or operation of an institution without a license issued
2-7 under this chapter; [or]
2-8 (3) grant the injunctive relief warranted by the facts
2-9 on a finding by the court that a person is violating or threatening
2-10 to violate the standards or licensing requirements prescribed by
2-11 this chapter; or
2-12 (4) restrain a person from denying access by the
2-13 department to the institution if the department reasonably believes
2-14 that the institution is required to be licensed and that it is
2-15 operating without a license.
2-16 (c) The attorney general or the county attorney in a county
2-17 with a population of 2.8 million or more, on request by the
2-18 department, shall institute and conduct in the name of the state a
2-19 suit authorized by this section or Subchapter D.
2-20 SECTION 2. Subsection (f), Section 242.065, Health and
2-21 Safety Code, is amended to read as follows:
2-22 (f) On request by the department, the attorney general or
2-23 the county attorney in a county with a population of 2.8 million or
2-24 more may institute an action in a district court to collect a civil
2-25 penalty under this section. If, within 30 days after the
2-26 department refers a violation by an institution in a county of 2.8
3-1 million or more to the attorney general, the attorney general has
3-2 failed to institute an action to collect a civil penalty, the
3-3 county attorney shall institute an action to collect the penalty
3-4 and may retain the penalty when collected.
3-5 SECTION 3. Section 242.073, Health and Safety Code, is
3-6 amended to read as follows:
3-7 Sec. 242.073. LEGAL ACTION BY THE ATTORNEY GENERAL OR
3-8 CERTAIN COUNTY ATTORNEYS. (a) The department and the attorney
3-9 general or the county attorney in a county with a population of 2.8
3-10 million or more shall work in close cooperation throughout any
3-11 legal proceedings requested by the department.
3-12 (b) The commissioner must approve any settlement agreement
3-13 to a suit brought under this chapter or any other law relating to
3-14 the health and safety of residents in institutions.
3-15 SECTION 4. Subsection (a), Section 242.094, Health and
3-16 Safety Code, is amended to read as follows:
3-17 (a) The department may request the attorney general or the
3-18 county attorney in a county with a population of 2.8 million or
3-19 more to bring an action in the name and on behalf of the state for
3-20 the appointment of a trustee to operate a home if:
3-21 (1) the home is operating without a license;
3-22 (2) the department has suspended or revoked the home's
3-23 license;
3-24 (3) license suspension or revocation procedures
3-25 against the home are pending and the department determines that an
3-26 imminent threat to the health and safety of the residents exists;
4-1 (4) the department determines that an emergency exists
4-2 that presents an immediate threat to the health and safety of the
4-3 residents; or
4-4 (5) the home is closing and arrangements for
4-5 relocation of the residents to other licensed institutions have not
4-6 been made before closure.
4-7 SECTION 5. Subsection (e), Section 242.094, Health and
4-8 Safety Code, as added by Chapters 583 and 815, Acts of the 73rd
4-9 Legislature, Regular Session, 1993, is conformed and amended to
4-10 read as follows:
4-11 (e) Venue for an action brought under this section is:
4-12 (1) in Travis County; or
4-13 (2) in a county with a population of 2.8 million or
4-14 more if the county attorney of the county brings the action under
4-15 this section.
4-16 SECTION 6. Subsection (b), Section 242.252, Health and
4-17 Safety Code, is amended to read as follows:
4-18 (b) An affected institution may elect arbitration under this
4-19 subchapter by filing the election with the court in which the
4-20 lawsuit is pending and sending notice of the election to the
4-21 department and to the office of the attorney general or the county
4-22 attorney in a county with a population of 2.8 million or more that
4-23 has filed an enforcement action against the affected institution.
4-24 The election must be filed not later than the 10th day after the
4-25 date on which the answer is due or the date on which the answer is
4-26 filed, whichever is sooner. If a civil penalty is requested after
5-1 the initial filing of a Section 242.094 lawsuit through the filing
5-2 of an amended or supplemental pleading, an affected institution
5-3 must elect arbitration not later than the 10th day after the date
5-4 on which the amended or supplemental pleading is served on the
5-5 affected institution or its counsel.
5-6 SECTION 7. Section 242.319, Health and Safety Code, is
5-7 amended to read as follows:
5-8 Sec. 242.319. CIVIL PENALTY. A person who violates this
5-9 subchapter is liable to the state for a civil penalty of $1,000 for
5-10 each day of violation. At the request of the department, the
5-11 attorney general or the county attorney in a county with a
5-12 population of 2.8 million or more shall bring an action to recover
5-13 a civil penalty established by this section. If, within 30 days
5-14 after the department refers a violation in a county of 2.8 million
5-15 or more to the attorney general, the attorney general has failed to
5-16 institute an action to collect a civil penalty, the county attorney
5-17 shall institute an action to collect the penalty and may retain the
5-18 penalty when collected.
5-19 SECTION 8. Section 242.320, Health and Safety Code, is
5-20 amended to read as follows:
5-21 Sec. 242.320. ASSISTANCE OF ATTORNEY GENERAL OR CERTAIN
5-22 COUNTY ATTORNEYS. The attorney general or the county attorney in a
5-23 county with a population of 2.8 million or more shall provide legal
5-24 assistance as necessary in enforcing the provisions of this
5-25 subchapter. This requirement does not relieve a local prosecuting
5-26 officer of any of the prosecuting officer's duties under the law.
6-1 SECTION 9. Subsections (a), (b), and (c), Section 252.062,
6-2 Health and Safety Code, are amended to read as follows:
6-3 (a) The department may petition a district court for a
6-4 temporary restraining order to:
6-5 (1) restrain a person from continuing a violation of
6-6 the standards prescribed by this chapter if the department finds
6-7 that the violation creates an immediate threat to the health and
6-8 safety of the facility's residents; or
6-9 (2) restrain a person from denying access by the
6-10 department to the facility for inspection purposes if the
6-11 department reasonably believes that the facility is required to be
6-12 licensed and that it is operating without a license.
6-13 (b) A district court, on petition of the department, may by
6-14 injunction or temporary restraining order:
6-15 (1) prohibit a person from continuing a violation of
6-16 the standards or licensing requirements prescribed by this chapter;
6-17 (2) restrain or prevent the establishment, conduct,
6-18 management, or operation of a facility without a license issued
6-19 under this chapter; [or]
6-20 (3) grant the injunctive relief warranted by the facts
6-21 on a finding by the court that a person is violating the standards
6-22 or licensing requirements prescribed by this chapter; or
6-23 (4) restrain a person from denying access by the
6-24 department to the facility if the department reasonably believes
6-25 that the facility is required to be licensed and that it is
6-26 operating without a license.
7-1 (c) The attorney general or the county attorney in a county
7-2 with a population of 2.8 million or more, on request by the
7-3 department, shall bring and conduct on behalf of the state a suit
7-4 authorized by this section.
7-5 SECTION 10. Subsection (c), Section 252.064, Health and
7-6 Safety Code, is amended to read as follows:
7-7 (c) On request of the department, the attorney general or
7-8 the county attorney in a county with a population of 2.8 million or
7-9 more may institute an action in a district court to collect a civil
7-10 penalty under this section. If, within 30 days after the
7-11 department refers a violation in a county of 2.8 million or more to
7-12 the attorney general, the attorney general has failed to institute
7-13 an action to collect a civil penalty, the county attorney shall
7-14 institute an action to collect the penalty and may retain the
7-15 penalty when collected. Any amount collected by the attorney
7-16 general shall be remitted to the comptroller for deposit to the
7-17 credit of the general revenue fund. Any amount collected by the
7-18 county attorney in a county with a population of 2.8 million or
7-19 more shall be remitted to the county treasurer of that county.
7-20 SECTION 11. Section 252.070, Health and Safety Code, is
7-21 amended to read as follows:
7-22 Sec. 252.070. EXPENSES AND COSTS FOR COLLECTION OF CIVIL OR
7-23 ADMINISTRATIVE PENALTY. (a) If the attorney general or the county
7-24 attorney in a county with a population of 2.8 million or more
7-25 brings an action against a person under Section 252.062 or 252.064
7-26 or to enforce an administrative penalty assessed under Section
8-1 252.065 and an injunction is granted against the person or the
8-2 person is found liable for a civil or administrative penalty, the
8-3 attorney general or the county attorney may recover, on behalf of
8-4 the attorney general or the county attorney and the department,
8-5 reasonable expenses and costs.
8-6 (b) For purposes of this section, reasonable expenses and
8-7 costs include expenses incurred by the department and the attorney
8-8 general or the county attorney in a county with a population of 2.8
8-9 million or more in the investigation, initiation, and prosecution
8-10 of an action, including reasonable investigative costs, attorney's
8-11 fees, witness fees, and deposition expenses.
8-12 SECTION 12. Subsection (a), Section 252.093, Health and
8-13 Safety Code, is amended to read as follows:
8-14 (a) The department may request the attorney general or the
8-15 county attorney in a county with a population of 2.8 million or
8-16 more to bring an action on behalf of the state for the appointment
8-17 of a trustee to operate a facility if:
8-18 (1) the facility is operating without a license;
8-19 (2) the department has suspended or revoked the
8-20 facility's license;
8-21 (3) license suspension or revocation procedures
8-22 against the facility are pending and the department determines that
8-23 an imminent threat to the health and safety of the residents
8-24 exists;
8-25 (4) the department determines that an emergency exists
8-26 that presents an immediate threat to the health and safety of the
9-1 residents; or
9-2 (5) the facility is closing and arrangements for
9-3 relocation of the residents to other licensed facilities have not
9-4 been made before closure.
9-5 SECTION 13. This Act takes effect September 1, 2001.