SRC-LBB, JLB, MSY, MLC, AMY S.B. 161 78(R)BILL ANALYSIS
Senate Research CenterS.B. 161
By: Nelson
Health and Human Services
7/14/2003
Enrolled
DIGEST AND PURPOSE
Currently, the Texas Department of Health (TDH) has indications that
enforcement sanctions are inadequate in some of the professional licensing
programs. S.B. 161 grants licensing programs the authority to issue
emergency suspension of a license to practice, to assess administrative
penalties to strengthen regulatory efforts, and to include civil and
criminal penalties to further sanction individuals who are out of
compliance, while ensuring standardization and consistency of enforcement
measures for licensing programs housed within TDH.
RULEMAKING AUTHORITY
This bill does not expressly grant any additional rulemaking authority to
a state officer, institution, or agency.
SECTION BY SECTION ANALYSIS
SECTION 1. Amends Subchapter I, Chapter 203, Occupations Code, by adding
Section 203.405, as follows:
Sec. 203.405. EMERGENCY SUSPENSION. (a) Requires the midwifery board, or
a three-member committee designated thereby, to temporarily suspend the
letter of documentation of a midwife should evidence or information
indicate that continued practice by that midwife constitutes a continuing
and imminent threat to public welfare.
(b) Authorizes the suspension of a letter of documentation without notice
or hearing on the complaint under certain circumstances.
(c) Requires the State Office of Administrative Hearings (SOAH) to hold
preliminary and final hearings regarding such a temporary suspension
within a certain time frame.
SECTION 2. Amends Subchapter F, Chapter 352, Occupations Code, by adding
Section 352.254, as follows:
Sec. 352.254. EMERGENCY SUSPENSION. (a) Requires the Texas Department of
Health (TDH), to temporarily suspend an optician's certificate of
registration should evidence or information indicate that continued
practice by that certificate holder constitutes a continuing and imminent
threat to public welfare.
(b) Authorizes the suspension of a certificate of registration without
notice or hearing on the complaint under certain circumstances.
(c) Requires SOAH to hold preliminary and final hearings regarding such a
temporary suspension within a certain time frame.
SECTION 3. Amends Subchapter E, Chapter 353, Occupations Code, by adding
Section 353.2025, as follows:
Sec. 353.2025. EMERGENCY SUSPENSION. (a) Requires TDH to temporarily
suspend the contact lens dispensing permit of a permit holder should
evidence or information indicate that continued practice by that permit
holder constitutes a continuing and imminent threat to public welfare.
(b) Authorizes the suspension of a permit without notice or hearing on
the complaint under certain circumstances.
(c) Requires SOAH to hold preliminary and final hearings regarding such a
temporary suspension within a certain time frame.
SECTION 4. Amends Subchapter J, Chapter 401, Occupations Code, by adding
Section 401.460, as follows:
Sec. 401.460. EMERGENCY SUSPENSION. (a) Requires the State Board of
Examiners for Speech-Language Pathology and Audiology, or a three-member
committee designated thereby, to temporarily suspend the license of a
license holder should evidence or information indicate that continued
practice by that license holder constitutes a continuing and imminent
threat to public welfare.
(b) Authorizes the suspension of a license without notice or hearing on
the complaint under certain circumstances.
(c) Requires SOAH to hold preliminary and final hearings regarding such a
temporary suspension within a certain time frame.
SECTION 5. Amends Chapter 401, Occupations Code, by adding Subchapter L,
as follows:
SUBCHAPTER L. ADMINISTRATIVE PENALTY
Sec. 401.551. IMPOSITION OF ADMINISTRATIVE PENALTY. Authorizes the State
Board of Examiners for Speech-Language Pathology and Audiology (board) to
impose an administrative penalty on a license holder who violates this
chapter or the rules or orders thereof.
Sec. 401.552. AMOUNT OF ADMINISTRATIVE PENALTY. (a) Establishes that
the penalty, with each day counting as a separate violation, ranges from
$50 to $500 per violation.
(b) Specifies the relevant criteria required to be factored into the
calculation of the penalty.
Sec. 401.553. REPORT AND NOTICE OF VIOLATION AND PENALTY. (a) Authorizes
the commissioner of public health (commissioner) or the commissioner's
designee to inform the board of a violation and recommend the imposition
and amount of an administrative penalty.
(b) Requires the commissioner or the commissioner's designee to provide
the person, within 14 days of the report's issuance, with a written notice
that includes a summary of the alleged violation, the recommended
administrative penalty, and either information on the person's right to a
hearing or the amount of the penalty or both.
Sec. 401.554. PENALTY TO BE PAID OR HEARING REQUESTED. (a) Authorizes
the person, within 10 days, to accept the determination and penalty or to
request a hearing.
(b) Requires the board to approve the determination and impose the penalty
if the person accepts the determination and penalty.
Sec. 401.555. HEARING. Requires the commissioner or the commissioner's
designee to set a hearing under certain circumstances and to provide
written notification of the hearing to the person. Requires an
administrative law judge of SOAH to hold the hearing and to promptly issue
a decision on the violation and the penalty.
Sec. 401.556. DECISION BY BOARD. Authorizes the board to determine,
based on certain criteria, whether or not a violation occurred. Requires
the board's order to include information on the person's right to judicial
review of the order.
Sec. 401.557. OPTIONS FOLLOWING DECISION: PAY OR APPEAL. (a) Requires
the person, within 30 days of the board's order becoming final, either to
pay the penalty or to file for judicial review or both.
(b) Authorizes a person filing for judicial review under Subsection (a)
to stay enforcement of a penalty in one of two ways: either by paying the
penalty into an escrow account or provide the court with an appropriate
bond; or to request the court to stay enforcement of the penalty by filing
a sworn affidavit stating lack of financial ability to pay the penalty and
providing it to the commissioner of public health by certified mail.
(c) Authorizes the commissioner or the commissioner's designee to contest
the affidavit within a specified time frame.
(d) Requires the court to hold a hearing on the affidavit and to stay
enforcement of the penalty upon verification of facts alleged in the
affidavit of inability to pay the penalty. Specifies that the burden of
proof is on the person filing the affidavit.
Sec. 401.558. COLLECTION OF PENALTY. Authorizes an administrative
penalty to be collected if it is not paid and the enforcement of the
penalty is not stayed. Authorizes the attorney general to sue for
collection of an unpaid penalty.
Sec. 401.559. DETERMINATION BY COURT. Authorizes the court, if it
sustains that a violation occurred, to uphold or reduce the amount of the
administrative penalty and to order the person to pay the full or reduced
amount of the penalty.
Sec. 401.560. REMITTANCE OF PENALTY AND INTEREST. Requires the court to
order, when its judgment becomes final, that the appropriate amount of the
administrative penalty plus accrued interest be remitted to the person if
the person paid the penalty is paid but reduced or not upheld by the
court. Provides that the interest on such a penalty accrues at a certain
rate. Requires that a certain time frame be used to calculate the
administrative penalty. Requires the court to order the release of a
supersedeas bond when its order becomes final if the penalty is not upheld
or to order the release of a supersedeas bond minus the amount by which
the penalty is reduced if the penalty is reduced.
Sec. 401.561. ADMINISTRATIVE PROCEDURE. Provides that a proceeding under
this subchapter is a contested case under Chapter 2001 (Administrative
Procedure), Government Code.
SECTION 6. Amends Subchapter K, Chapter 402, Occupations Code, by adding
Section 402.504, as follows:
Sec. 402.504. EMERGENCY SUSPENSION. (a) Requires the committee, or a
threemember subcommittee of committee members designated thereby, to
temporarily suspend the license or permit to fit and dispense hearing
instruments of a license or permit holder should evidence or information
indicate that continued practice by that license or permit holder
constitutes a continuing and imminent threat to public welfare.
(b) Authorizes the suspension of a license or permit without notice or
hearing on the complaint under certain circumstances.
(c) Requires SOAH to hold preliminary and final hearings regarding such a
temporary suspension within a certain time frame.
SECTION 7. Amends Subchapter L, Chapter 402, Occupations Code, by adding
Section 402.553, as follows:
Sec. 402.553. CIVIL PENALTY. (a) Establishes a civil penalty of not
more than $5,000 a day against a person who violates this chapter or a
rule or order of the committee.
(b) Requires the attorney general to bring action for recovery of a civil
penalty, at the request of the committee.
SECTION 8. Amends Subchapter F, Chapter 451, Occupations Code, by adding
Section 451.255, as follows:
Sec. 451.255. EMERGENCY SUSPENSION. (a) Requires the Advisory Board of
Athletic Trainers (board), or a three-member committee designated thereby,
to temporarily suspend the license of a license holder should evidence or
information indicate that continued practice by that license holder
constitutes a continuing and imminent threat to public welfare.
(b) Authorizes the suspension of a license without notice or hearing on
the complaint under certain circumstances.
(c) Requires SOAH to hold preliminary and final hearings regarding such a
temporary suspension within a certain time frame.
SECTION 9. Amends Subchapter F, Chapter 455, Occupations Code, by adding
Section 455.254, as follows:
Sec. 455.254. EMERGENCY SUSPENSION. (a) Requires TDH to temporarily
suspend the certificate of registration of a massage therapist should
evidence or information indicate that continued practice by that license
holder constitutes a continuing and imminent threat to public welfare.
(b) Authorizes the suspension of a certificate of registration without
notice or hearing on the complaint under certain circumstances.
(c) Requires SOAH to hold preliminary and final hearings regarding such a
temporary suspension within a certain time frame.
SECTION 10. Amends Subchapter H, Chapter 502, Occupations Code, by adding
Section 502.356, as follows:
Sec. 502.356. EMERGENCY SUSPENSION. (a) Requires the Texas State Board
of Examiners of Marriage and Family Therapists, or a three-member
committee designated thereby, to temporarily suspend the license of a
license holder should evidence or information indicate that continued
practice by that license holder constitute a continuing and imminent
threat to public welfare.
(b) Authorizes the suspension of a license without notice or hearing on
the complaint under certain circumstances.
(c) Requires SOAH to hold preliminary and final hearings regarding such a
temporary suspension within a certain time frame.
SECTION 11. Amends Chapter 503, Occupations Code, by adding Subchapter K,
as follows:
SUBCHAPTER K. ADMINISTRATIVE PENALTY
Sec. 503.501. IMPOSITION OF ADMINISTRATIVE PENALTY. Authorizes the Texas
State Board of Examiners of Professional Counselors (board) to impose an
administrative penalty on a license holder who violates this chapter or a
rule or order thereof.
Sec. 503.502. AMOUNT OF ADMINISTRATIVE PENALTY. (a) Establishes that
the penalty, with each day counting as a separate violation, ranges from
$50 to $5000 per violation.
(b) Specifies the relevant criteria required to be factored into the
calculation of the penalty.
Sec. 503.503. REPORT AND NOTICE OF VIOLATION AND PENALTY.
(a) Authorizes the commissioner or the commissioner's designee to inform
the board of a violation and recommend the imposition and amount of an
administrative penalty.
(b) Requires the commissioner or the commissioner's designee to provide,
within 14 days of the report's issuance, the person with a written notice
that includes a summary of the alleged violation, the recommended
administrative penalty, and either information on the person's right to a
hearing or the amount of the penalty or both.
Sec. 503.504. PENALTY TO BE PAID OR HEARING REQUESTED. (a) Authorizes
the person, within 10 days, to accept the determination and penalty or
request a hearing.
(b) Requires the board to approve the determination and impose the
penalty if the person accepts the determination and penalty.
Sec. 503.505. HEARING. Requires the commissioner or the commissioner's
designee to set a hearing under certain circumstances and to provide
written notification of the hearing to the person. Requires an
administrative law judge of SOAH to hold the hearing and to promptly issue
a decision on the violation and the penalty.
Sec. 503.506. DECISION BY BOARD. Authorizes the board to determine,
based on certain criteria, whether a violation occurred. Requires the
board's order to include information on the person's right to judicial
review of the order.
Sec. 503.507. OPTIONS FOLLOWING DECISION: PAY OR APPEAL. (a) Requires
the person, within 30 days of the board's order becoming final, either to
pay the penalty or to file for judicial review or both.
(b) Authorizes a person filing for judicial review under Subsection (a)
to stay enforcement of a penalty in one of two ways: either by paying the
penalty into an escrow account or provide the court with an appropriate
bond; or to request the court to stay enforcement of the penalty by filing
a sworn affidavit stating lack of financial ability to pay the penalty and
providing it to the commissioner of public health or the commissioner's
designee by certified mail.
(c) Authorizes the commissioner or the commissioner's designee to contest
the affidavit within a specified time frame.
(d) Requires the court to hold a hearing on the affidavit and to stay
enforcement of the penalty upon verification of facts alleged in the
affidavit of inability to pay the penalty. Specifies that the burden of
proof is on the person filing the affidavit.
Sec. 503.508. COLLECTION OF PENALTY. Authorizes the administrative
penalty to be collected if it is not paid and the enforcement of the
penalty is not stayed. Authorizes the attorney general to sue for
collection of an unpaid penalty.
Sec. 503.509. DETERMINATION BY COURT. Authorizes the court to uphold,
reduce, or cancel the penalty depending upon whether it determines a
violation has occurred.
Sec. 503.510. REMITTANCE OF PENALTY AND INTEREST. Requires the court to
order, when its judgment becomes final, that the appropriate amount of the
administrative penalty plus accrued interest be remitted to the person if
the person paid the penalty is paid but reduced or not upheld by the
court. Provides that the interest on such a penalty accrues at a certain
rate. Requires that a certain time frame be used to calculate the
administrative penalty. Requires the court to order the release of a
supersedeas bond when its order becomes final if the penalty is not upheld
or to order the release of a supersedeas bond minus the amount by which
the penalty is reduced if the penalty is reduced.
Sec. 503.511. ADMINISTRATIVE PROCEDURE. Provides that a proceeding under
this subchapter is a contested case under Chapter 2001 (Administrative
Procedure), Government Code.
SECTION 12. Amends SubchapterJ, Chapter 505, Occupations Code, by adding
Section 505.507, as follows:
Sec. 505.507. CRIMINAL PENALTY. Establishes that a person knowingly
acting as a social worker without holding a required license commits a
Class A misdemeanor.
SECTION 13. Amends Subchapter G, Chapter 601, Occupations Code, by adding
Section 601.306, as follows:
Sec. 601.306. EMERGENCY SUSPENSION. (a) Requires TDH to temporarily
suspend the certificate of a medical radiologic technologist should
evidence or information indicate that continued practice by that
certificate holder constitutes a continuing and imminent threat to public
welfare.
(b) Authorizes the suspension of a certificate without notice or hearing
on the complaint under certain circumstances.
(c) Requires SOAH to hold preliminary and final hearings regarding such a
temporary suspension within a certain time frame.
SECTION 14. Amends Subchapter F, Chapter 602, Occupations Code, by adding
Section 602.254, as follows:
Sec. 602.254. EMERGENCY SUSPENSION. (a) Requires the Texas Board of
Licensure for Professional Medical Physicists in TDH, or a three-member
committee designated thereby, to temporarily suspend the license of a
license holder should evidence or information indicate that continued
practice by that license holder constitute a continuing and imminent
threat to public welfare.
(b) Authorizes the suspension of a license without notice or hearing on
the complaint under certain circumstances.
(c) Requires SOAH to hold preliminary and final hearings regarding such a
temporary suspension within a certain time frame.
SECTION 15. Amends Subchapter G, Chapter 602, Occupations Code, by adding
Section 602.3015, as follows:
Sec. 602.3015. CIVIL PENALTY. (a) Establishes a civil penalty of not
more than $5,000 a day against a person who violates this chapter or a
rule or order thereof.
(b) Requires the attorney general to bring action for recovery of a civil
penalty, at the request of the Texas Board of Licensure for Professional
Medical Physicists.
SECTION 16. Amends Section 602.302, Occupations Code, to add that a
person commits a class A, rather than B, misdemeanor if the person
knowingly practices medical physics or a specialty of medical physics
without holding the required license. Makes a nonsubstantive change and
redesignates Subdivisions (1) and (2) as (3) and (4).
SECTION 17. Amends Subchapter I, Chapter 603, Occupations Code, by adding
Section 603.408, as follows:
Sec. 603.408. EMERGENCY SUSPENSION. (a) Requires the Texas State Board
of Examiners of Perfusionists (board), or a three-member committee
designated thereby, to temporarily suspend the license of a license holder
should evidence or information indicate that continued practice by that
license holder constitutes a continuing and imminent threat to public
welfare.
(b) Authorizes the suspension of a license without notice or hearing on
the complaint under certain circumstances.
(c) Requires SOAH to hold preliminary and final hearings regarding such a
temporary suspension within a certain time frame.
SECTION 18. Amends Subchapter J, Chapter 603, Occupations Code, by adding
Section 603.4515, as follows:
Section 603.4515. CIVIL PENALTY. (a) Establishes a civil penalty of not
more than $5,000 a day against a person who violates this chapter or a
rule or order of this chapter.
(b) Requires the attorney general to bring action for recovery of a civil
penalty, at the request of the Texas State Board of Examiners of
Perfusionists.
SECTION 19. Amends Chapter 603, Occupations Code, by adding Subchapter K,
as follows:
SUBCHAPTER K. ADMINISTRATIVE PENALTY
Sec. 603.501. IMPOSITION OF ADMINISTRATIVE PENALTY. Authorizes the Texas
State Board of Examiners of Perfusionists (board) to impose an
administrative penalty on a license holder who violates the rules or
orders of this chapter.
Sec. 603.502 AMOUNT OF ADMINISTRATIVE PENALTY. (a) Establishes that
the penalty, with each day counting as a separate violation, ranges from
$50 to $5,000 per violation.
(b) Specifies the relevant criteria required to be factored into the
calculation of the penalty.
Sec. 603.503. REPORT AND NOTICE OF VIOLATION AND PENALTY.
(a) Authorizes the commissioner or the commissioner's designee to inform
the board of a violation and to recommend the imposition and amount of an
administrative penalty.
(b) Requires the commissioner or the commissioner's desisgnee to provide,
within 14 days of the report's issuance, the person with a written notice
that includes a summary of the alleged violation, the recommended
administrative penalty, and either information on the person's right to a
hearing or the amount of the penalty or both.
Sec. 603.504. PENALTY TO BE PAID OR HEARING REQUESTED. (a) Authorizes
the person, within 10 days, to accept the determination and penalty or to
request a hearing.
(b) Requires the board to approve the determination and to impose the
penalty if the person accepts the determination and penalty.
Sec. 603.505. HEARING. Requires the commissioner or the commissioner's
designee to set a hearing under certain circumstances and to provide
written notification of the hearing to the person. Requires an
administrative law judge of SOAH to hold the hearing and to promptly issue
a decision on the violation and the penalty.
Sec. 603.506. DECISION BY BOARD. Authorizes the board to determine,
based on certain criteria, whether a violation occurred. Requires the
board's order to include information on the person's right to judicial
review of the order.
Sec. 603.507. OPTIONS FOLLOWING DECISION: PAY OR APPEAL. (a) Requires
the person, within 30 days of the board's order becoming final, either to
pay the penalty or to file for judicial review or both.
(b) Authorizes a person filing for judicial review under Subsection (a)
to stay enforcement of a penalty in one of two ways: either by paying the
penalty into an escrow account or provide the court with an appropriate
bond; or to request the court to stay enforcement of the penalty by filing
a sworn affidavit stating lack of financial ability to pay the penalty and
providing it to the commissioner of public health by certified mail.
(c) Authorizes the commissioner or the commissioner's designee to contest
the affidavit within a specified time frame.
(d) Requires the court to hold a hearing on the affidavit and to stay
enforcement of the penalty upon verification of facts alleged in the
affidavit of inability to pay the penalty. Specifies that the burden of
proof is on the person filing the affidavit.
Sec. 603.508. COLLECTION OF PENALTY. Authorizes the administrative
penalty to be collected if it is not paid and the enforcement of the
penalty is not stayed. Authorizes the attorney general to sue for
collection of an unpaid penalty.
Sec. 603.509. DETERMINATION BY COURT. Authorizes the court to uphold,
reduce, or cancel the penalty depending upon whether it determines that a
violation has occurred.
Sec. 603.510. REMITTANCE OF PENALTY AND INTEREST. Requires the court to
order, when its judgment becomes final, that the appropriate amount of the
administrative penalty plus accrued interest be remitted to the person if
the person paid the penalty is paid but reduced or not upheld by the
court. Provides that the interest on such a penalty accrues at a certain
rate. Requires that a certain time frame be used to calculate the
administrative penalty. Requires the court to order the release of a
supersedeas bond when its order becomes final if the penalty is not upheld
or to order the release of a supersedeas bond minus the amount by which
the penalty is reduced if the penalty is reduced.
Sec. 603.511. ADMINISTRATIVE PROCEDURE. Provides that a proceeding under
this subchapter is a contested case under Chapter 2001 (Administrative
Procedure), Government Code.
SECTION 20. Amends Subchapter H, Chapter 605, Occupations Code, by adding
Section 605.3535, as follows:
Sec. 605.3535. EMERGENCY SUSPENSION. (a) Requires the Texas Board of
Orthotics and Prosthetics, or a three-member committee designated thereby,
to temporarily suspend the license of a license holder should evidence or
information indicate that continued practice by that license holder
constitutes a continuing and imminent threat to public welfare.
(b) Authorizes the suspension of a license without notice or hearing on
the complaint under certain circumstances.
(c) Requires SOAH to hold preliminary and final hearings regarding such a
temporary suspension within a certain time frame.
SECTION 21. Amends Subchapter H, Chapter 605, Occupations Code, by adding
Section 605.356, as follows:
Sec. 605.356 CRIMINAL PENALTY. Establishes that a person who knowingly
practices, attempts to or offers to practice, orthotics or prosthetics
without holding a required license commits a Class A misdemeanor.
SECTION 22. Amends Chapter 605, Occupations Code, by adding Subchapter I,
as follows:
SUBCHAPTER I. ADMINISTRATIVE PENALTY
Sec. 605.401. IMPOSITION OF ADMINISTRATIVE PENALTY. Authorizes the Texas
Board of Orthotics and Prosthetics (board) to impose an administrative
penalty on a license holder who violates the rules or orders of this
chapter.
Sec. 605.402 AMOUNT OF ADMINISTRATIVE PENALTY. (a) Establishes that the
penalty, with each day counting as a separate violation, ranges from $50
to $5,000 per violation.
(b) Specifies the relevant criteria required to be factored into the
calculation of the penalty.
Sec. 605.403. REPORT AND NOTICE OF VIOLATION AND PENALTY.
(a) Authorizes the commissioner or the commissioner's designee to inform
the board of a violation and recommend the imposition and amount of an
administrative penalty.
(b) Requires the commissioner or the commissioner's designee to provide
the person, within 14 days of the report's issuance, with a written notice
that includes a summary of the alleged violation, the recommended
administrative penalty, and either information on the person's right to a
hearing or the amount of the penalty or both.
Sec. 605.404. PENALTY TO BE PAID OR HEARING REQUESTED. (a) Authorizes
the person, within 10 days, to accept the determination and penalty or
request a hearing.
(b) Requires the board to approve the determination and impose the
penalty if the person accepts the determination and penalty.
Sec. 605.405. HEARING. Requires the commissioner or the commissioner's
designee to set a hearing under certain circumstances and to provide
written notification of the hearing to the person. Requires an
administrative law judge of SOAH to hold the hearing and to promptly issue
a decision on the violation and the penalty.
Sec. 605.406. DECISION BY BOARD. Authorizes the board to determine,
based on certain criteria, whether a violation occurred. Requires the
board's order to include information on the person's right to judicial
review of the order.
Sec. 605.407. OPTIONS FOLLOWING DECISION: PAY OR APPEAL. (a) Requires
the person, within 30 days of the board's order becoming final, either to
pay the penalty or to file for judicial review or both.
(b) Authorizes a person filing for judicial review under Subsection (a)
to stay enforcement of a penalty in one of two ways: either by paying the
penalty into an escrow account or provide the court with an appropriate
bond; or to request the court to stay enforcement of the penalty by filing
a sworn affidavit stating lack of financial ability to pay the penalty and
providing it to the commissioner of public health by certified mail.
(c) Authorizes the commissioner or the commissioner's designee to contest
the affidavit within a specified time frame.
(d) Requires the court to hold a hearing on the affidavit and to stay
enforcement of the penalty upon verification of facts alleged in the
affidavit of inability to pay the penalty. Specifies that the burden of
proof is on the person filing the affidavit.
Sec. 605.408. COLLECTION OF PENALTY. Authorizes the administrative
penalty to be collected if it is not paid and the enforcement of the
penalty is not stayed. Authorizes the attorney general to sue for
collection of an unpaid penalty.
Sec. 605.409. DETERMINATION BY COURT. Authorizes the court to uphold,
reduce, or cancel the penalty depending upon whether it determines a
violation has occurred.
Sec. 605.410. REMITTANCE OF PENALTY AND INTEREST. Requires the court to
order, when its judgment becomes final, that the appropriate amount of the
administrative penalty plus accrued interest be remitted to the person if
the person paid the penalty is paid but reduced or not upheld by the
court. Provides that the interest on such a penalty accrues at a certain
rate. Requires that a certain time frame be used to calculate the
administrative penalty. Requires the court to order the release of a
supersedeas bond when its order becomes final if the penalty is not upheld
or to order the release of a supersedeas bond minus the amount by which
the penalty is reduced if the penalty is reduced.
Sec. 605.411. ADMINISTRATIVE PROCEDURE. Provides that a proceeding under
this subchapter is a contested case under Chapter 2001 (Administrative
Procedure), Government Code.
SECTION 23. Amends Subchapter I, Chapter 701, Occupations Code, by adding
Section 701.408, as follows:
Sec. 701.408. EMERGENCY SUSPENSION. (a) Requires the Texas State Board
of Examiners of Dietitians (dietitians board), or a three-member committee
designated thereby, to temporarily suspend the license of a license holder
should evidence or information indicate that continued practice by that
license holder constitutes a continuing and imminent threat to public
welfare.
(b) Authorizes the suspension of a license without notice or hearing on
the complaint under certain circumstances.
(c) Requires SOAH to hold preliminary and final hearings regarding such a
temporary suspension within a certain time frame.
SECTION 24. Amends Chapter 701, Occupations Code, by adding Subchapter K,
as follows:
SUBCHAPTER K. ADMINISTRATIVE PENALTY
Sec. 701.501. IMPOSITION OF ADMINISTRATIVE PENALTY. Authorizes the
dietitians board to impose an administrative penalty on a license holder
who violates the rules or orders of this chapter.
Sec. 701.502. AMOUNT OF ADMINISTRATIVE PENALTY. (a) Establishes that
the penalty, with each day counting as a separate violation, ranges from
$50 to $5,000 per violation.
(b) Specifies the relevant criteria required to be factored into
calculation of the penalty.
Sec. 701.503. REPORT AND NOTICE OF VIOLATION AND PENALTY.
(a) Authorizes the commissioner or the commissioner's designee to inform
the dietitians board of a violation and to recommend the imposition and
amount of an administrative penalty.
(b) Requires the commissioner or the commissioner's designee to provide,
within 14 days of the report's issuance, the person with a written notice
that includes a summary of the alleged violation, the recommended
administrative penalty, and either information on the person's right to a
hearing or the amount of the penalty or both.
Sec. 701.504. PENALTY TO BE PAID OR HEARING REQUESTED. (a) Authorizes
the person, within 10 days, to accept the determination and penalty or to
request a hearing.
(b) Requires the dietitians board to approve the determination and to
impose the penalty if the person accepts the determination and penalty.
Sec. 701.505. HEARING. Requires the commissioner or the commissioner's
designee to set a hearing under certain circumstances and to provide
written notification of the hearing to the person. Requires an
administrative law judge of SOAH to hold the hearing and to promptly issue
a decision on the violation and the penalty.
Sec. 701.506. DECISION BY DIETITIANS BOARD. Authorizes the dietitians
board to determine, based on certain criteria, whether a violation
occurred. Requires the board's order to include certain information on
the person's right to judicial review of the order.
Sec. 701.507. OPTIONS FOLLOWING DECISION: PAY OR APPEAL. (a) Requires
the person, within 30 days of the board's order becoming final, either to
pay the penalty or to file for judicial review or both.
(b) Authorizes a person filing for judicial review under Subsection (a)
to stay enforcement of a penalty in one of two ways: either by paying the
penalty into an escrow account or provide the court with an appropriate
bond; or to request the court to stay enforcement of the penalty by filing
a sworn affidavit stating lack of financial ability to pay the penalty and
providing it to the commissioner or the commissioner's designee of public
health by certified mail.
(c) Authorizes the commissioner or the commissioner's designee to contest
the affidavit within a specified time frame.
(d) Requires the court to hold a hearing on the affidavit and to stay
enforcement of the penalty upon verification of facts alleged in the
affidavit of inability to pay the penalty. Specifies that the burden of
proof is on the person filing the affidavit.
Sec. 701.508. COLLECTION OF PENALTY. Authorizes the administrative
penalty to be collected if it is not paid and the enforcement of the
penalty is not stayed. Authorizes the attorney general to sue for
collection of an unpaid penalty.
Sec. 701.509. DETERMINATION BY COURT. Authorizes the court to uphold,
reduce, or cancel the penalty depending upon whether it determines a
violation has occurred.
Sec. 701.510. REMITTANCE OF PENALTY AND INTEREST. Requires the court to
order, when its judgment becomes final, that the appropriate amount of the
administrative penalty plus accrued interest be remitted to the person if
the person paid the penalty is paid but reduced or not upheld by the
court. Provides that the interest on such a penalty accrues at a certain
rate. Requires that a certain time frame be used to calculate the
administrative penalty. Requires the court to order the release of a
supersedeas bond when its order becomes final if the penalty is not upheld
or to order the release of a supersedeas bond minus the amount by which
the penalty is reduced if the penalty is reduced.
Sec. 701.511. ADMINISTRATIVE PROCEDURE. Provides that a proceeding under
this subchapter is a contested case under Chapter 2001 (Administrative
Procedure), Government Code.
SECTION 25. Amends Chapter 1952, Occupations Code, by adding Subchapter
F, as follows:
Sec. 1952.251. IMPOSITION OF ADMINISTRATIVE PENALTY. Authorizes the
department to impose an administrative penalty on a person registered
under this chapter who violates this chapter or a rule or order adopted
under this chapter.
Sec. 1952.252. AMOUNT OF ADMINISTRATIVE PENALTY. (a) Sets forth a
penalty range of $50 to $5,000 and provides that each day a violation
continues or occurs is a separate violation for the purpose of imposing a
penalty.
(b) Requires the amount to be based on several factors.
Sec. 1952.253. REPORT AND NOTICE OF VIOLATION AND PENALTY. (a)
Authorizes the commissioner or the commissioner's designee, if they find
that a violation occurred, to issue to the department a report stating
certain facts and recommendations.
(b) Requires the commissioner or the commissioner's designee within a
certain time frame to give written notice of the report to the person.
Requires the notice to include certain information.
Sec. 1952.254. PENALTY TO BE PAID OR HEARING REQUESTED. (a) Authorizes
the person, within a certain time frame, to accept the determination and
recommended administrative penalty of the commissioner or the
commissioner's designee or to make a request for a hearing on the
occurrence of the violation, the amount of the penalty, or both.
(b) Requires the department by order, if the person accepts the
determination and recommended penalty of the commissioner or the
commissioner's designee, to approve the determination and impose the
recommended penalty.
Sec. 1952.255. HEARING. (a) Requires the commissioner or the
commissioner's designee, if the person requests a hearing or fails to
respond in a timely manner to the notice, to set a hearing and give
written notice of the hearing to the person.
(b) Requires an administrative law judge of SOAHto hold the hearing.
(c) Requires the administrative law judge to make findings of fact and
conclusions of law and promptly issue to the department a proposal for a
decision about the occurrence of the violation and the amount of a
proposed administrative penalty.
Sec. 1952.256. DECISION BY DEPARTMENT. (a) Authorizes the department by
order and based on findings of fact, conclusions of law, and proposal for
decision, to determine that a violation occurred and impose an
administrative penalty or to determine that a violation did not occur.
(b) Requires the notice of the department's order given to the person to
include a statement of the person's right to judicial review of the
order.
Sec. 1952.257. OPTIONS FOLLOWING DECISION: PAY OR APPEAL. (a) Requires
the person within 30 days after the date the department's order becomes
final, to take certain actions.
(b) Authorizes a person who files a petition for judicial review within a
certain time period to take certain actions regarding a stay of
enforcement of the penalty.
(c) Authorizes the commissioner or the commissioner's designee, upon
receipt of a copy of an affidavit under Subsection (b) (2), to within a
certain time frame file with the court a contest to the affidavit.
(d) Requires the court to hold a hearing on the facts alleged in the
affidavit as soon as practicable and to stay the enforcement of the
penalty on finding that the alleged facts are true. Requires the person
who files an affidavit to prove that the person is financially unable to
pay the penalty and to give a supersedeas bond.
Sec. 1952.258. COLLECTION OF PENALTY. (a) Authorizes the penalty to be
collected if the person does not pay the administrative penalty and the
enforcement is not stayed.
(b) Authorizes the attorney general to sue to collect the penalty.
Sec. 1952.259. DETERMINATION BY COURT. (a) Authorizes the court, if the
court sustains the determination that a violation occurred, to uphold or
reduce the amount of the administrative penalty and order the person to
pay the full or reduced amount of the penalty.
(b) Requires the court, if the court does not sustain the finding that a
violation occurred, to order that a penalty is not owed.
Sec. 1952.260. REMITTANCE OF PENALTY AND INTEREST. (a) Requires the
court when a penalty is reduced or not sustained to order, when the
court's judgment becomes final, that the appropriate amount plus accrued
interest be remitted to the person.
(b) Provides that the interest accrues at the rate charged on loans to
depository institutions by the New York Federal Reserve Bank.
(c) Requires the interest to be paid for the period beginning and ending
on certain dates.
(d) Requires the court, if the person has a supersedeas bond and the
penalty is not upheld by the court, to order the release of the bond when
the court's judgment becomes final.
(e) Requires the court, if the person gave a supersedeas bond and the
amount of the penalty is reduced, to order the release of the bond after
the person pays the reduced amount.
Sec. 1952.261. ADMINISTRATIVE PROCEDURE. Provides that a proceeding
under this subchapter is a contested case under Chapter 2001, Government
Code.
SECTION 26. Amends Chapter 1953, Occupations Code, by adding Subchapter
G, as follows:
SUBCHAPTER G. ADMINISTRATIVE PENALTY
Sec. 1953.301 IMPOSITION OF ADMINISTRATIVE PENALTY. Authorizes the board
to impose an administrative penalty on a person registered under this
chapter who violates this chapter or a rule or order adopted under this
chapter.
Sec. 1953.302. AMOUNT OF ADMINISTRATIVE PENALTY. (a) Sets forth the
amount limits for the administrative penalty and provides that each day a
violation continues or occurs is a separate violation for the purpose of
imposing a penalty.
(b) Requires the amount to be based on certain factors.
Sec. 1953.303. REPORT AND NOTICE OF VIOLATION AND PENALTY. (a)
Authorizes the commissioner or the commissioner's designee, upon finding
that a violation occurred, to issue to the board a report stating certain
facts and recommendations.
(b) Requires the commissioner or the commissioner's designee, within a
certain time frame to give written notice of the report to the person.
Requires the notice to include certain information.
Sec. 1953.304. PENALTY TO BE PAID OR HEARING REQUESTED. (a) Authorizes
the person within a certain time frame to accept the determination and
recommended administrative penalty or make a request for a hearing on the
occurrence of the violation, the amount of the penalty, or both.
(b) Requires the board by order, if the person accepts the determination
and recommended penalty of the commissioner or the commissioner's
designee, to approve the determination and impose the recommended penalty.
Sec. 1953.305. HEARING. (a) Requires the commissioner or the
commissioner's designee, if the person requests a hearing or fails to
respond in a timely manner to the notice, to set a hearing and inform the
person in writing.
(b) Requires an administrative law judge of SOAH to hold the hearing.
(c) Requires the administrative law judge to make findings of fact and
conclusions of law and promptly issue to the board a proposal for a
decision about the occurrence of the violation and the amount of a
proposed administrative
penalty.
Sec. 1953.306. DECISION BY BOARD. Authorizes the board by order, and
based on the finding of fact, conclusion of law and proposal for decision,
to make certain determinations.
Sec. 1953.307. OPTIONS FOLLOWING DECISION: PAY OR APPEAL. (a) Requires
the person, within a certain time frame, to pay the administrative penalty
or file a petition for judicial review contesting the occurrence of the
violation, the amount of the penalty, or both.
(b) Authorizes a person who files a petition for judicial review, within
a certain time frame, to take certain actions relating to the staying of
enforcement of the penalty.
(c) Authorizes the commissioner or the commissioner's designee, under
certain circumstances to file with the court, within a certain time frame,
a contest to the affidavit.
(d) Requires the court to hold a hearing on the facts alleged in the
affidavit as soon as practicable and to stay the enforcement of the
penalty on finding that the alleged facts are true. Provides that the
person who files and affidavit must prove that the person is financially
unable to pay the penalty and to give a supersedeas bond.
Sec. 1953.308. COLLECTION OF PENALTY. (a) Authorizes the administrative
penalty to be collected if the person does not pay the penalty and the
penalty is not stayed.
(b) Authorizes the attorney general to sue to collect the penalty.
Sec. 1953.309. DETERMINATION BY COURT. (a) Authorizes the court, if it
sustains the determination that a violation occurred, to uphold or reduce
the amount of the penalty and order the person to pay the full or deduced
amount of the penalty.
(b) Requires the court, if it does not sustain the finding that a
violation occurred, to order that a penalty is not owed.
Sec. 1953.310. REMITTANCE OF PENALTY AND INTEREST. (a) Requires the
court, if the penalty is reduced or not upheld, to order that the
appropriate amount plus accrued interest be remitted to the person.
(b) Provides that the interest accrues at the rate charge on loans to
depository institutions by the New York Federal Reserve Bank.
(c) Requires the interest to be paid for a certain period.
(d) Requires the court, if the person gave a supersedeas bond and the
penalty is not upheld by the court, to order the release of the bond after
the person pays the reduced amount.
(e) Requires the court, if the person gave a supersedeas bond and the
amount of the penalty is reduced, to order the release of the bond after
the person pays the reduced amount.
Sec. 1953.311. ADMINISTRATIVE PROCEDURE. Provides that a proceeding
under this subchapter is a contested case under Chapter 2001
(Administrative Procedure), Government Code.
SECTION 27. Amends Article 4413(51), V.T.C.S., by adding Sections 13D and
13E, as follows:
Sec. 13D. EMERGENCY SUSPENSION. (a) Requires the Council on Sex
Offender Treatment (council), or a three-member committee designated
thereby, to temporarily suspend the registration of a person registered
under this Act if the council or committee determines from the evidence or
information presented to it that continued practice by the person would
constitute a continuing and imminent threat to public welfare.
(b) Authorizes the suspension of a registration without notice or hearing
on the complaint under certain circumstances.
(c) Requires SOAH to hold preliminary and final hearings regarding such a
temporary suspension within a certain time frame.
Sec. 13E. ADMINISTRATIVE PENALTY (a) Authorizes the council to impose
an administrative penalty on a registration holder who violates this
chapter or the rules or orders thereof.
(b) Establishes that the penalty, with each day counting as a separate
violation, ranges from $50 to $5,000 per violation. Specifies the
relevant criteria required to be factored into the calculation of the
penalty.
(c) Authorizes the commissioner of public health or the commissioner's
designee, if the commissioner or the commissioner's designee determines
that a violation occurred, to issue to the council a report stating
certain information.
(d) Requires the commissioner or the commissioner's designee, within 14
days after the date the report is issued, to give written notice of the
report to the person. Requires the notice to include certain information.
(e) Authorizes the person, within 10 days, to accept the determination
and penalty or to request a hearing.
(f) Requires the council by order, if the person accepts the
determination and recommended penalty of the commissioner or the
commissioner's designee, to approve the determination and impose the
recommended penalty.
(g) Establishes the circumstances under which the commissioner or the
commissioner's designee is required to set a hearing.
(h) Requires an administrative law judge of SOAH to hold the hearing.
(i) Requires the administrative law judge to issue a proposal for a
decision on the determination of a violation and the amount of the
administrative penalty.
(j) Authorizes the council to determine, based on certain criteria,
whether a violation occurred.
(k) Requires the council's order to include information on the person's
right to judicial review of the order.
(l) Requires the person to pay the penalty or file for judicial review
within 30 days of the council's order becoming final.
(m) Authorizes a person filing for judicial review to pay the penalty
into an escrow account or to provide the court with an appropriate bond to
stay enforcement of the penalty. Authorizes the person to request the
court to stay enforcement of the penalty by filing a sworn affidavit
stating lack of financial ability to pay the penalty and providing it to
the commissioner or the commissioner's designee by certified mail.
(n) Authorizes the commissioner or the commissioner's designee to
contest the affidavit within a specified time frame.
(o) Requires the court to hold a hearing on the affidavit and to render a
decision. Specifies that the burden of proof is on the person filing the
affidavit.
(p) Authorizes the attorney general to sue for collection of an unpaid
penalty.
(q) Authorizes the court to uphold, reduce, or cancel the penalty
depending upon whether it determines a violation has occurred.
(r) Requires the court to remit money paid, plus interest, if the penalty
is not upheld or the amount is reduced.
(s) Requires the court to release the supersedeas bond if the penalty is
not upheld for if the penalty amount is reduced, after the person has paid
the reduced amount.
(t) Specifies that a proceeding under this subchapter is a contested case
under Chapter 2001 (Administrative Procedure), Government Code.
SECTION 28. (a) Effective date: September 1, 2003.
(b) Makes prospective the application of the changes in law made to
Sections 505.507, 602.302, and 605.356, Occupations Code.
(c) Makes prospective the changes in law made by this Act to the
imposition of an administrative or civil penalty.