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.