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By: Nelson S.B. No. 161
(In the Senate - Filed January 2, 2003; January 30, 2003,
read first time and referred to Committee on Health and Human
Services; March 3, 2003, reported adversely, with favorable
Committee Substitute by the following vote: Yeas 9, Nays 0;
March 3, 2003, sent to printer.)
COMMITTEE SUBSTITUTE FOR S.B. No. 161 By: Zaffirini
A BILL TO BE ENTITLED
AN ACT
relating to the regulation and enforcement of certain licensing
programs by the Texas Department of Health; providing
administrative, civil, and criminal penalties.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Subchapter I, Chapter 203, Occupations Code, is
amended by adding Section 203.405 to read as follows:
Sec. 203.405. EMERGENCY SUSPENSION. (a) The midwifery
board or a three-member committee of midwifery board members
designated by the midwifery board shall temporarily suspend the
letter of documentation of a documented midwife if the midwifery
board or committee determines from the evidence or information
presented to it that continued practice by the documented midwife
would constitute a continuing and imminent threat to the public
welfare.
(b) A letter of documentation may be suspended under this
section without notice or hearing on the complaint if:
(1) action is taken to initiate proceedings for a
hearing before the State Office of Administrative Hearings
simultaneously with the temporary suspension; and
(2) a hearing is held as soon as practicable under this
chapter and Chapter 2001, Government Code.
(c) The State Office of Administrative Hearings shall hold a
preliminary hearing not later than the 14th day after the date of
the temporary suspension to determine if there is probable cause to
believe that a continuing and imminent threat to the public welfare
still exists. A final hearing on the matter shall be held not later
than the 61st day after the date of the temporary suspension.
SECTION 2. Subchapter F, Chapter 352, Occupations Code, is
amended by adding Section 352.254 to read as follows:
Sec. 352.254. EMERGENCY SUSPENSION. (a) The department
shall temporarily suspend the certificate of registration of a
certificate holder if the department determines from the evidence
or information presented to it that continued practice by the
certificate holder would constitute a continuing and imminent
threat to the public welfare.
(b) A certificate of registration may be suspended under
this section without notice or hearing on the complaint if:
(1) action is taken to initiate proceedings for a
hearing before the State Office of Administrative Hearings
simultaneously with the temporary suspension; and
(2) a hearing is held as soon as practicable under this
chapter and Chapter 2001, Government Code.
(c) The State Office of Administrative Hearings shall hold a
preliminary hearing not later than the 14th day after the date of
the temporary suspension to determine if there is probable cause to
believe that a continuing and imminent threat to the public welfare
still exists. A final hearing on the matter shall be held not later
than the 61st day after the date of the temporary suspension.
SECTION 3. Subchapter E, Chapter 353, Occupations Code, is
amended by adding Section 353.2025 to read as follows:
Sec. 353.2025. EMERGENCY SUSPENSION. (a) The department
shall temporarily suspend the permit of a permit holder if the
department determines from the evidence or information presented to
it that continued practice by the permit holder would constitute a
continuing and imminent threat to the public welfare.
(b) A permit may be suspended under this section without
notice or hearing on the complaint if:
(1) action is taken to initiate proceedings for a
hearing before the State Office of Administrative Hearings
simultaneously with the temporary suspension; and
(2) a hearing is held as soon as practicable under this
chapter and Chapter 2001, Government Code.
(c) The State Office of Administrative Hearings shall hold a
preliminary hearing not later than the 14th day after the date of
the temporary suspension to determine if there is probable cause to
believe that a continuing and imminent threat to the public welfare
still exists. A final hearing on the matter shall be held not later
than the 61st day after the date of the temporary suspension.
SECTION 4. Subchapter J, Chapter 401, Occupations Code, is
amended by adding Section 401.460 to read as follows:
Sec. 401.460. EMERGENCY SUSPENSION. (a) The board or a
three-member committee of board members designated by the board
shall temporarily suspend the license of a license holder if the
board or committee determines from the evidence or information
presented to it that continued practice by the license holder would
constitute a continuing and imminent threat to the public welfare.
(b) A license may be suspended under this section without
notice or hearing on the complaint if:
(1) action is taken to initiate proceedings for a
hearing before the State Office of Administrative Hearings
simultaneously with the temporary suspension; and
(2) a hearing is held as soon as practicable under this
chapter and Chapter 2001, Government Code.
(c) The State Office of Administrative Hearings shall hold a
preliminary hearing not later than the 14th day after the date of
the temporary suspension to determine if there is probable cause to
believe that a continuing and imminent threat to the public welfare
still exists. A final hearing on the matter shall be held not later
than the 61st day after the date of the temporary suspension.
SECTION 5. Chapter 401, Occupations Code, is amended by
adding Subchapter L to read as follows:
SUBCHAPTER L. ADMINISTRATIVE PENALTY
Sec. 401.551. IMPOSITION OF ADMINISTRATIVE PENALTY. The
board may impose an administrative penalty on a person licensed
under this chapter who violates this chapter or a rule or order
adopted under this chapter.
Sec. 401.552. AMOUNT OF ADMINISTRATIVE PENALTY. (a) The
amount of the administrative penalty may not be less than $50 or
more than $5,000 for each violation. Each day a violation continues
or occurs is a separate violation for the purpose of imposing a
penalty.
(b) The amount shall be based on:
(1) the seriousness of the violation, including the
nature, circumstances, extent, and gravity of the violation;
(2) the economic harm caused by the violation;
(3) the history of previous violations;
(4) the amount necessary to deter a future violation;
(5) efforts to correct the violation; and
(6) any other matter that justice may require.
Sec. 401.553. REPORT AND NOTICE OF VIOLATION AND PENALTY.
(a) If the commissioner of public health or the commissioner's
designee determines that a violation occurred, the commissioner or
the designee may issue to the board a report stating:
(1) the facts on which the determination is based; and
(2) the commissioner's or the designee's
recommendation on the imposition of an administrative penalty,
including a recommendation on the amount of the penalty.
(b) Within 14 days after the date the report is issued, the
commissioner of public health or the commissioner's designee shall
give written notice of the report to the person. The notice must:
(1) include a brief summary of the alleged violation;
(2) state the amount of the recommended administrative
penalty; and
(3) inform the person of the person's right to a
hearing on the occurrence of the violation, the amount of the
penalty, or both.
Sec. 401.554. PENALTY TO BE PAID OR HEARING REQUESTED
(a) Within 10 days after the date the person receives the notice,
the person in writing may:
(1) accept the determination and recommended
administrative penalty of the commissioner of public health or the
commissioner's designee; or
(2) make a request for a hearing on the occurrence of
the violation, the amount of the penalty, or both.
(b) If the person accepts the determination and recommended
penalty of the commissioner of public health or the commissioner's
designee, the board by order shall approve the determination and
impose the recommended penalty.
Sec. 401.555. HEARING. (a) If the person requests a
hearing or fails to respond in a timely manner to the notice, the
commissioner of public health or the commissioner's designee shall
set a hearing and give written notice of the hearing to the person.
(b) An administrative law judge of the State Office of
Administrative Hearings shall hold the hearing.
(c) The administrative law judge shall 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. 401.556. DECISION BY BOARD. (a) Based on the
findings of fact, conclusions of law, and proposal for decision,
the board by order may determine that:
(1) a violation occurred and impose an administrative
penalty; or
(2) a violation did not occur.
(b) The notice of the board's order given to the person must
include a statement of the right of the person to judicial review of
the order.
Sec. 401.557. OPTIONS FOLLOWING DECISION: PAY OR APPEAL.
(a) Within 30 days after the date the board's order becomes final,
the person shall:
(1) pay the administrative penalty; or
(2) file a petition for judicial review contesting the
occurrence of the violation, the amount of the penalty, or both.
(b) Within the 30-day period prescribed by Subsection (a), a
person who files a petition for judicial review may:
(1) stay enforcement of the penalty by:
(A) paying the penalty to the court for placement
in an escrow account; or
(B) giving the court a supersedeas bond approved
by the court that:
(i) is for the amount of the penalty; and
(ii) is effective until all judicial review
of the board's order is final; or
(2) request the court to stay enforcement of the
penalty by:
(A) filing with the court a sworn affidavit of
the person stating that the person is financially unable to pay the
penalty and is financially unable to give the supersedeas bond; and
(B) giving a copy of the affidavit to the
commissioner of public health or the commissioner's designee by
certified mail.
(c) If the commissioner of public health or the
commissioner's designee receives a copy of an affidavit under
Subsection (b)(2), the commissioner or the designee may file with
the court, within five days after the date the copy is received, a
contest to the affidavit.
(d) The court shall hold a hearing on the facts alleged in
the affidavit as soon as practicable and shall stay the enforcement
of the penalty on finding that the alleged facts are true. The
person who files an affidavit has the burden of proving that the
person is financially unable to pay the penalty and to give a
supersedeas bond.
Sec. 401.558. COLLECTION OF PENALTY. (a) If the person
does not pay the administrative penalty and the enforcement of the
penalty is not stayed, the penalty may be collected.
(b) The attorney general may sue to collect the penalty.
Sec. 401.559. DETERMINATION BY COURT. (a) If the court
sustains the determination that a violation occurred, the court may
uphold or reduce the amount of the administrative penalty and order
the person to pay the full or reduced amount of the penalty.
(b) If the court does not sustain the finding that a
violation occurred, the court shall order that a penalty is not
owed.
Sec. 401.560. REMITTANCE OF PENALTY AND INTEREST. (a) If
the person paid the administrative penalty and if the amount of the
penalty is reduced or the penalty is not upheld by the court, the
court shall order, when the court's judgment becomes final, that
the appropriate amount plus accrued interest be remitted to the
person.
(b) The interest accrues at the rate charged on loans to
depository institutions by the New York Federal Reserve Bank.
(c) The interest shall be paid for the period beginning on
the date the penalty is paid and ending on the date the penalty is
remitted.
(d) If the person gave a supersedeas bond and the penalty is
not upheld by the court, the court shall order, when the court's
judgment becomes final, the release of the bond.
(e) If the person gave a supersedeas bond and the amount of
the penalty is reduced, the court shall order the release of the
bond after the person pays the reduced amount.
Sec. 401.561. ADMINISTRATIVE PROCEDURE. A proceeding under
this subchapter is a contested case under Chapter 2001, Government
Code.
SECTION 6. Subchapter K, Chapter 402, Occupations Code, is
amended by adding Section 402.504 to read as follows:
Sec. 402.504. EMERGENCY SUSPENSION. (a) The committee or
a three-member subcommittee of committee members designated by the
committee shall temporarily suspend the license or permit of a
license or permit holder if the committee or subcommittee
determines from the evidence or information presented to it that
continued practice by the license or permit holder would constitute
a continuing and imminent threat to the public welfare.
(b) A license or permit may be suspended under this section
without notice or hearing on the complaint if:
(1) action is taken to initiate proceedings for a
hearing before the State Office of Administrative Hearings
simultaneously with the temporary suspension; and
(2) a hearing is held as soon as practicable under this
chapter and Chapter 2001, Government Code.
(c) The State Office of Administrative Hearings shall hold a
preliminary hearing not later than the 14th day after the date of
the temporary suspension to determine if there is probable cause to
believe that a continuing and imminent threat to the public welfare
still exists. A final hearing on the matter shall be held not later
than the 61st day after the date of the temporary suspension.
SECTION 7. Subchapter L, Chapter 402, Occupations Code, is
amended by adding Section 402.553 to read as follows:
Sec. 402.553. CIVIL PENALTY. (a) A person who violates
this chapter or a rule or order adopted by the committee under this
chapter is liable for a civil penalty not to exceed $5,000 a day.
(b) At the request of the committee, the attorney general
shall bring an action to recover a civil penalty authorized under
this section.
SECTION 8. Subchapter F, Chapter 451, Occupations Code, is
amended by adding Section 451.255 to read as follows:
Sec. 451.255. EMERGENCY SUSPENSION. (a) The board or a
three-member committee of board members designated by the board
shall temporarily suspend the license of a license holder if the
board or committee determines from the evidence or information
presented to it that continued practice by the license holder would
constitute a continuing and imminent threat to the public welfare.
(b) A license may be suspended under this section without
notice or hearing on the complaint if:
(1) action is taken to initiate proceedings for a
hearing before the State Office of Administrative Hearings
simultaneously with the temporary suspension; and
(2) a hearing is held as soon as practicable under this
chapter and Chapter 2001, Government Code.
(c) The State Office of Administrative Hearings shall hold a
preliminary hearing not later than the 14th day after the date of
the temporary suspension to determine if there is probable cause to
believe that a continuing and imminent threat to the public welfare
still exists. A final hearing on the matter shall be held not later
than the 61st day after the date of the temporary suspension.
SECTION 9. Subchapter F, Chapter 455, Occupations Code, is
amended by adding Section 455.254 to read as follows:
Sec. 455.254. EMERGENCY SUSPENSION. (a) The department
shall temporarily suspend the certificate of registration of a
certificate holder if the department determines from the evidence
or information presented to it that continued practice by the
certificate holder would constitute a continuing and imminent
threat to the public welfare.
(b) A certificate of registration may be suspended under
this section without notice or hearing on the complaint if:
(1) action is taken to initiate proceedings for a
hearing before the State Office of Administrative Hearings
simultaneously with the temporary suspension; and
(2) a hearing is held as soon as practicable under this
chapter and Chapter 2001, Government Code.
(c) The State Office of Administrative Hearings shall hold a
preliminary hearing not later than the 14th day after the date of
the temporary suspension to determine if there is probable cause to
believe that a continuing and imminent threat to the public welfare
still exists. A final hearing on the matter shall be held not later
than the 61st day after the date of the temporary suspension.
SECTION 10. Subchapter H, Chapter 502, Occupations Code, is
amended by adding Section 502.356 to read as follows:
Sec. 502.356. EMERGENCY SUSPENSION. (a) The board or a
three-member committee of board members designated by the board
shall temporarily suspend the license of a license holder if the
board or committee determines from the evidence or information
presented to it that continued practice by the license holder would
constitute a continuing and imminent threat to the public welfare.
(b) A license may be suspended under this section without
notice or hearing on the complaint if:
(1) action is taken to initiate proceedings for a
hearing before the State Office of Administrative Hearings
simultaneously with the temporary suspension; and
(2) a hearing is held as soon as practicable under this
chapter and Chapter 2001, Government Code.
(c) The State Office of Administrative Hearings shall hold a
preliminary hearing not later than the 14th day after the date of
the temporary suspension to determine if there is probable cause to
believe that a continuing and imminent threat to the public welfare
still exists. A final hearing on the matter shall be held not later
than the 61st day after the date of the temporary suspension.
SECTION 11. Chapter 503, Occupations Code, is amended by
adding Subchapter K to read as follows:
SUBCHAPTER K. ADMINISTRATIVE PENALTY
Sec. 503.501. IMPOSITION OF ADMINISTRATIVE PENALTY. The
board may impose an administrative penalty on a person licensed
under this chapter who violates this chapter or a rule or order
adopted under this chapter.
Sec. 503.502. AMOUNT OF ADMINISTRATIVE PENALTY. (a) The
amount of the administrative penalty may not be less than $50 or
more than $5,000 for each violation. Each day a violation continues
or occurs is a separate violation for the purpose of imposing a
penalty.
(b) The amount shall be based on:
(1) the seriousness of the violation, including the
nature, circumstances, extent, and gravity of the violation;
(2) the economic harm caused by the violation;
(3) the history of previous violations;
(4) the amount necessary to deter a future violation;
(5) efforts to correct the violation; and
(6) any other matter that justice may require.
Sec. 503.503. REPORT AND NOTICE OF VIOLATION AND PENALTY.
(a) If the commissioner of public health or the commissioner's
designee determines that a violation occurred, the commissioner or
the designee may issue to the board a report stating:
(1) the facts on which the determination is based; and
(2) the commissioner's or the designee's
recommendation on the imposition of an administrative penalty,
including a recommendation on the amount of the penalty.
(b) Within 14 days after the date the report is issued, the
commissioner of public health or the commissioner's designee shall
give written notice of the report to the person. The notice must:
(1) include a brief summary of the alleged violation;
(2) state the amount of the recommended administrative
penalty; and
(3) inform the person of the person's right to a
hearing on the occurrence of the violation, the amount of the
penalty, or both.
Sec. 503.504. PENALTY TO BE PAID OR HEARING REQUESTED. (a)
Within 10 days after the date the person receives the notice, the
person in writing may:
(1) accept the determination and recommended
administrative penalty of the commissioner of public health or the
commissioner's designee; or
(2) make a request for a hearing on the occurrence of
the violation, the amount of the penalty, or both.
(b) If the person accepts the determination and recommended
penalty of the commissioner of public health or the commissioner's
designee, the board by order shall approve the determination and
impose the recommended penalty.
Sec. 503.505. HEARING. (a) If the person requests a
hearing or fails to respond in a timely manner to the notice, the
commissioner of public health or the commissioner's designee shall
set a hearing and give written notice of the hearing to the person.
(b) An administrative law judge of the State Office of
Administrative Hearings shall hold the hearing.
(c) The administrative law judge shall 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. 503.506. DECISION BY BOARD. (a) Based on the
findings of fact, conclusions of law, and proposal for decision,
the board by order may determine that:
(1) a violation occurred and impose an administrative
penalty; or
(2) a violation did not occur.
(b) The notice of the board's order given to the person must
include a statement of the right of the person to judicial review of
the order.
Sec. 503.507. OPTIONS FOLLOWING DECISION: PAY OR APPEAL.
(a) Within 30 days after the date the board's order becomes final,
the person shall:
(1) pay the administrative penalty; or
(2) file a petition for judicial review contesting the
occurrence of the violation, the amount of the penalty, or both.
(b) Within the 30-day period prescribed by Subsection (a), a
person who files a petition for judicial review may:
(1) stay enforcement of the penalty by:
(A) paying the penalty to the court for placement
in an escrow account; or
(B) giving the court a supersedeas bond approved
by the court that:
(i) is for the amount of the penalty; and
(ii) is effective until all judicial review
of the board's order is final; or
(2) request the court to stay enforcement of the
penalty by:
(A) filing with the court a sworn affidavit of
the person stating that the person is financially unable to pay the
penalty and is financially unable to give the supersedeas bond; and
(B) giving a copy of the affidavit to the
commissioner of public health or the commissioner's designee by
certified mail.
(c) If the commissioner of public health or the
commissioner's designee receives a copy of an affidavit under
Subsection (b)(2), the commissioner or the designee may file with
the court, within five days after the date the copy is received, a
contest to the affidavit.
(d) The court shall hold a hearing on the facts alleged in
the affidavit as soon as practicable and shall stay the enforcement
of the penalty on finding that the alleged facts are true. The
person who files an affidavit has the burden of proving that the
person is financially unable to pay the penalty and to give a
supersedeas bond.
Sec. 503.508. COLLECTION OF PENALTY. (a) If the person
does not pay the administrative penalty and the enforcement of the
penalty is not stayed, the penalty may be collected.
(b) The attorney general may sue to collect the penalty.
Sec. 503.509. DETERMINATION BY COURT. (a) If the court
sustains the determination that a violation occurred, the court may
uphold or reduce the amount of the administrative penalty and order
the person to pay the full or reduced amount of the penalty.
(b) If the court does not sustain the finding that a
violation occurred, the court shall order that a penalty is not
owed.
Sec. 503.510. REMITTANCE OF PENALTY AND INTEREST. (a) If
the person paid the administrative penalty and if the amount of the
penalty is reduced or the penalty is not upheld by the court, the
court shall order, when the court's judgment becomes final, that
the appropriate amount plus accrued interest be remitted to the
person.
(b) The interest accrues at the rate charged on loans to
depository institutions by the New York Federal Reserve Bank.
(c) The interest shall be paid for the period beginning on
the date the penalty is paid and ending on the date the penalty is
remitted.
(d) If the person gave a supersedeas bond and the penalty is
not upheld by the court, the court shall order, when the court's
judgment becomes final, the release of the bond.
(e) If the person gave a supersedeas bond and the amount of
the penalty is reduced, the court shall order the release of the
bond after the person pays the reduced amount.
Sec. 503.511. ADMINISTRATIVE PROCEDURE. A proceeding under
this subchapter is a contested case under Chapter 2001, Government
Code.
SECTION 12. Subchapter J, Chapter 505, Occupations Code, is
amended by adding Section 505.507 to read as follows:
Sec. 505.507. CRIMINAL PENALTY. (a) A person required to
hold a license under this chapter commits an offense if the person
knowingly acts as a social worker without holding a license issued
under this chapter.
(b) An offense under Subsection (a) is a Class A
misdemeanor.
SECTION 13. Subchapter G, Chapter 601, Occupations Code, is
amended by adding Section 601.306 to read as follows:
Sec. 601.306. EMERGENCY SUSPENSION. (a) The department
shall temporarily suspend the certificate of a certificate holder
if the department determines from the evidence or information
presented to it that continued practice by the certificate holder
would constitute a continuing and imminent threat to the public
welfare.
(b) A certificate may be suspended under this section
without notice or hearing on the complaint if:
(1) action is taken to initiate proceedings for a
hearing before the State Office of Administrative Hearings
simultaneously with the temporary suspension; and
(2) a hearing is held as soon as practicable under this
chapter and Chapter 2001, Government Code.
(c) The State Office of Administrative Hearings shall hold a
preliminary hearing not later than the 14th day after the date of
the temporary suspension to determine if there is probable cause to
believe that a continuing and imminent threat to the public welfare
still exists. A final hearing on the matter shall be held not later
than the 61st day after the date of the temporary suspension.
SECTION 14. Subchapter F, Chapter 602, Occupations Code, is
amended by adding Section 602.254 to read as follows:
Sec. 602.254. EMERGENCY SUSPENSION. (a) The board or a
three-member committee of board members designated by the board
shall temporarily suspend the license of a license holder if the
board or committee determines from the evidence or information
presented to it that continued practice by the license holder would
constitute a continuing and imminent threat to the public welfare.
(b) A license may be suspended under this section without
notice or hearing on the complaint if:
(1) action is taken to initiate proceedings for a
hearing before the State Office of Administrative Hearings
simultaneously with the temporary suspension; and
(2) a hearing is held as soon as practicable under this
chapter and Chapter 2001, Government Code.
(c) The State Office of Administrative Hearings shall hold a
preliminary hearing not later than the 14th day after the date of
the temporary suspension to determine if there is probable cause to
believe that a continuing and imminent threat to the public welfare
still exists. A final hearing on the matter shall be held not later
than the 61st day after the date of the temporary suspension.
SECTION 15. Subchapter G, Chapter 602, Occupations Code, is
amended by adding Section 602.3015 to read as follows:
Sec. 602.3015. CIVIL PENALTY. (a) A person who violates
this chapter or a rule or order adopted by the board under this
chapter is liable for a civil penalty not to exceed $5,000 a day.
(b) At the request of the board, the attorney general shall
bring an action to recover a civil penalty authorized under this
section.
SECTION 16. Section 602.302, Occupations Code, is amended
to read as follows:
Sec. 602.302. OFFENSE. (a) A person commits an offense if
the person [knowingly]:
(1) practices medical physics without holding a
license under this chapter;
(2) practices a specialty of medical physics without
holding a license for the specialty;
(3) practices medical physics in violation of this
chapter; or
(4) [(2)] uses in any manner letters, terminology,
symbols, or signs to indicate or imply that the person is qualified
or licensed to practice medical physics in a manner for which the
person is not licensed under this chapter.
(b) An offense under this section is a Class A [B]
misdemeanor.
SECTION 17. Subchapter I, Chapter 603, Occupations Code, is
amended by adding Section 603.408 to read as follows:
Sec. 603.408. EMERGENCY SUSPENSION. (a) The board or a
three-member committee of board members designated by the board
shall temporarily suspend the license of a license holder if the
board or committee determines from the evidence or information
presented to it that continued practice by the license holder would
constitute a continuing and imminent threat to the public welfare.
(b) A license may be suspended under this section without
notice or hearing on the complaint if:
(1) action is taken to initiate proceedings for a
hearing before the State Office of Administrative Hearings
simultaneously with the temporary suspension; and
(2) a hearing is held as soon as practicable under this
chapter and Chapter 2001, Government Code.
(c) The State Office of Administrative Hearings shall hold a
preliminary hearing not later than the 14th day after the date of
the temporary suspension to determine if there is probable cause to
believe that a continuing and imminent threat to the public welfare
still exists. A final hearing on the matter shall be held not later
than the 61st day after the date of the temporary suspension.
SECTION 18. Subchapter J, Chapter 603, Occupations Code, is
amended by adding Section 603.4515 to read as follows:
Sec. 603.4515. CIVIL PENALTY. (a) A person who violates
this chapter or a rule or order adopted by the board under this
chapter is liable for a civil penalty not to exceed $5,000 a day.
(b) At the request of the board, the attorney general shall
bring an action to recover a civil penalty authorized under this
section.
SECTION 19. Chapter 603, Occupations Code, is amended by
adding Subchapter K to read as follows:
SUBCHAPTER K. ADMINISTRATIVE PENALTY
Sec. 603.501. IMPOSITION OF ADMINISTRATIVE PENALTY. The
board may impose an administrative penalty on a person licensed
under this chapter who violates this chapter or a rule or order
adopted under this chapter.
Sec. 603.502. AMOUNT OF ADMINISTRATIVE PENALTY. (a) The
amount of the administrative penalty may not be less than $50 or
more than $5,000 for each violation. Each day a violation continues
or occurs is a separate violation for the purpose of imposing a
penalty.
(b) The amount shall be based on:
(1) the seriousness of the violation, including the
nature, circumstances, extent, and gravity of the violation;
(2) the economic harm caused by the violation;
(3) the history of previous violations;
(4) the amount necessary to deter a future violation;
(5) efforts to correct the violation; and
(6) any other matter that justice may require.
Sec. 603.503. REPORT AND NOTICE OF VIOLATION AND PENALTY.
(a) If the commissioner or the commissioner's designee determines
that a violation occurred, the commissioner or the designee may
issue to the board a report stating:
(1) the facts on which the determination is based; and
(2) the commissioner's or the designee's
recommendation on the imposition of an administrative penalty,
including a recommendation on the amount of the penalty.
(b) Within 14 days after the date the report is issued, the
commissioner or the commissioner's designee shall give written
notice of the report to the person. The notice must:
(1) include a brief summary of the alleged violation;
(2) state the amount of the recommended administrative
penalty; and
(3) inform the person of the person's right to a
hearing on the occurrence of the violation, the amount of the
penalty, or both.
Sec. 603.504. PENALTY TO BE PAID OR HEARING REQUESTED.
(a) Within 10 days after the date the person receives the notice,
the person in writing may:
(1) accept the determination and recommended
administrative penalty of the commissioner or the commissioner's
designee; or
(2) make a request for a hearing on the occurrence of
the violation, the amount of the penalty, or both.
(b) If the person accepts the determination and recommended
penalty of the commissioner or the commissioner's designee, the
board by order shall approve the determination and impose the
recommended penalty.
Sec. 603.505. HEARING. (a) If the person requests a
hearing or fails to respond in a timely manner to the notice, the
commissioner or the commissioner's designee shall set a hearing and
give written notice of the hearing to the person.
(b) An administrative law judge of the State Office of
Administrative Hearings shall hold the hearing.
(c) The administrative law judge shall 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. 603.506. DECISION BY BOARD. (a) Based on the
findings of fact, conclusions of law, and proposal for decision,
the board by order may determine that:
(1) a violation occurred and impose an administrative
penalty; or
(2) a violation did not occur.
(b) The notice of the board's order given to the person must
include a statement of the right of the person to judicial review of
the order.
Sec. 603.507. OPTIONS FOLLOWING DECISION: PAY OR APPEAL.
(a) Within 30 days after the date the board's order becomes final,
the person shall:
(1) pay the administrative penalty; or
(2) file a petition for judicial review contesting the
occurrence of the violation, the amount of the penalty, or both.
(b) Within the 30-day period prescribed by Subsection (a), a
person who files a petition for judicial review may:
(1) stay enforcement of the penalty by:
(A) paying the penalty to the court for placement
in an escrow account; or
(B) giving the court a supersedeas bond approved
by the court that:
(i) is for the amount of the penalty; and
(ii) is effective until all judicial review
of the board's order is final; or
(2) request the court to stay enforcement of the
penalty by:
(A) filing with the court a sworn affidavit of
the person stating that the person is financially unable to pay the
penalty and is financially unable to give the supersedeas bond; and
(B) giving a copy of the affidavit to the
commissioner or the commissioner's designee by certified mail.
(c) If the commissioner or the commissioner's designee
receives a copy of an affidavit under Subsection (b)(2), the
commissioner or the designee may file with the court, within five
days after the date the copy is received, a contest to the
affidavit.
(d) The court shall hold a hearing on the facts alleged in
the affidavit as soon as practicable and shall stay the enforcement
of the penalty on finding that the alleged facts are true. The
person who files an affidavit has the burden of proving that the
person is financially unable to pay the penalty and to give a
supersedeas bond.
Sec. 603.508. COLLECTION OF PENALTY. (a) If the person
does not pay the administrative penalty and the enforcement of the
penalty is not stayed, the penalty may be collected.
(b) The attorney general may sue to collect the penalty.
Sec. 603.509. DETERMINATION BY COURT. (a) If the court
sustains the determination that a violation occurred, the court may
uphold or reduce the amount of the administrative penalty and order
the person to pay the full or reduced amount of the penalty.
(b) If the court does not sustain the finding that a
violation occurred, the court shall order that a penalty is not
owed.
Sec. 603.510. REMITTANCE OF PENALTY AND INTEREST. (a) If
the person paid the administrative penalty and if the amount of the
penalty is reduced or the penalty is not upheld by the court, the
court shall order, when the court's judgment becomes final, that
the appropriate amount plus accrued interest be remitted to the
person.
(b) The interest accrues at the rate charged on loans to
depository institutions by the New York Federal Reserve Bank.
(c) The interest shall be paid for the period beginning on
the date the penalty is paid and ending on the date the penalty is
remitted.
(d) If the person gave a supersedeas bond and the penalty is
not upheld by the court, the court shall order, when the court's
judgment becomes final, the release of the bond.
(e) If the person gave a supersedeas bond and the amount of
the penalty is reduced, the court shall order the release of the
bond after the person pays the reduced amount.
Sec. 603.511. ADMINISTRATIVE PROCEDURE. A proceeding under
this subchapter is a contested case under Chapter 2001, Government
Code.
SECTION 20. Subchapter H, Chapter 605, Occupations Code, is
amended by adding Section 605.3535 to read as follows:
Sec. 605.3535. EMERGENCY SUSPENSION. (a) The board or a
three-member committee of board members designated by the board
shall temporarily suspend the license of a license holder if the
board or committee determines from the evidence or information
presented to it that continued practice by the license holder would
constitute a continuing and imminent threat to the public welfare.
(b) A license may be suspended under this section without
notice or hearing on the complaint if:
(1) action is taken to initiate proceedings for a
hearing before the State Office of Administrative Hearings
simultaneously with the temporary suspension; and
(2) a hearing is held as soon as practicable under this
chapter and Chapter 2001, Government Code.
(c) The State Office of Administrative Hearings shall hold a
preliminary hearing not later than the 14th day after the date of
the temporary suspension to determine if there is probable cause to
believe that a continuing and imminent threat to the public welfare
still exists. A final hearing on the matter shall be held not later
than the 61st day after the date of the temporary suspension.
SECTION 21. Subchapter H, Chapter 605, Occupations Code, is
amended by adding Section 605.356 to read as follows:
Sec. 605.356. CRIMINAL PENALTY. (a) A person required to
hold a license under this chapter commits an offense if the person
knowingly practices, attempts to practice, or offers to practice
orthotics or prosthetics without holding a license issued under
this chapter.
(b) An offense under Subsection (a) is a Class A
misdemeanor.
SECTION 22. Chapter 605, Occupations Code, is amended by
adding Subchapter I to read as follows:
SUBCHAPTER I. ADMINISTRATIVE PENALTY
Sec. 605.401. IMPOSITION OF ADMINISTRATIVE PENALTY. The
board may impose an administrative penalty on a person licensed
under this chapter who violates this chapter or a rule or order
adopted under this chapter.
Sec. 605.402. AMOUNT OF ADMINISTRATIVE PENALTY. (a) The
amount of the administrative penalty may not be less than $50 or
more than $5,000 for each violation. Each day a violation continues
or occurs is a separate violation for the purpose of imposing a
penalty.
(b) The amount shall be based on:
(1) the seriousness of the violation, including the
nature, circumstances, extent, and gravity of the violation;
(2) the economic harm caused by the violation;
(3) the history of previous violations;
(4) the amount necessary to deter a future violation;
(5) efforts to correct the violation; and
(6) any other matter that justice may require.
Sec. 605.403. REPORT AND NOTICE OF VIOLATION AND PENALTY.
(a) If the commissioner or the commissioner's designee determines
that a violation occurred, the commissioner or the designee may
issue to the board a report stating:
(1) the facts on which the determination is based; and
(2) the commissioner's or the designee's
recommendation on the imposition of an administrative penalty,
including a recommendation on the amount of the penalty.
(b) Within 14 days after the date the report is issued, the
commissioner or the commissioner's designee shall give written
notice of the report to the person. The notice must:
(1) include a brief summary of the alleged violation;
(2) state the amount of the recommended administrative
penalty; and
(3) inform the person of the person's right to a
hearing on the occurrence of the violation, the amount of the
penalty, or both.
Sec. 605.404. PENALTY TO BE PAID OR HEARING REQUESTED.
(a) Within 10 days after the date the person receives the notice,
the person in writing may:
(1) accept the determination and recommended
administrative penalty of the commissioner or the commissioner's
designee; or
(2) make a request for a hearing on the occurrence of
the violation, the amount of the penalty, or both.
(b) If the person accepts the determination and recommended
penalty of the commissioner or the commissioner's designee, the
board by order shall approve the determination and impose the
recommended penalty.
Sec. 605.405. HEARING. (a) If the person requests a
hearing or fails to respond in a timely manner to the notice, the
commissioner or the commissioner's designee shall set a hearing and
give written notice of the hearing to the person.
(b) An administrative law judge of the State Office of
Administrative Hearings shall hold the hearing.
(c) The administrative law judge shall 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. 605.406. DECISION BY BOARD. (a) Based on the
findings of fact, conclusions of law, and proposal for decision,
the board by order may determine that:
(1) a violation occurred and impose an administrative
penalty; or
(2) a violation did not occur.
(b) The notice of the board's order given to the person must
include a statement of the right of the person to judicial review of
the order.
Sec. 605.407. OPTIONS FOLLOWING DECISION: PAY OR APPEAL.
(a) Within 30 days after the date the board's order becomes final,
the person shall:
(1) pay the administrative penalty; or
(2) file a petition for judicial review contesting the
occurrence of the violation, the amount of the penalty, or both.
(b) Within the 30-day period prescribed by Subsection (a), a
person who files a petition for judicial review may:
(1) stay enforcement of the penalty by:
(A) paying the penalty to the court for placement
in an escrow account; or
(B) giving the court a supersedeas bond approved
by the court that:
(i) is for the amount of the penalty; and
(ii) is effective until all judicial review
of the board's order is final; or
(2) request the court to stay enforcement of the
penalty by:
(A) filing with the court a sworn affidavit of
the person stating that the person is financially unable to pay the
penalty and is financially unable to give the supersedeas bond; and
(B) giving a copy of the affidavit to the
commissioner or the commissioner's designee by certified mail.
(c) If the commissioner or the commissioner's designee
receives a copy of an affidavit under Subsection (b)(2), the
commissioner or the designee may file with the court, within five
days after the date the copy is received, a contest to the
affidavit.
(d) The court shall hold a hearing on the facts alleged in
the affidavit as soon as practicable and shall stay the enforcement
of the penalty on finding that the alleged facts are true. The
person who files an affidavit has the burden of proving that the
person is financially unable to pay the penalty and to give a
supersedeas bond.
Sec. 605.408. COLLECTION OF PENALTY. (a) If the person
does not pay the administrative penalty and the enforcement of the
penalty is not stayed, the penalty may be collected.
(b) The attorney general may sue to collect the penalty.
Sec. 605.409. DETERMINATION BY COURT. (a) If the court
sustains the determination that a violation occurred, the court may
uphold or reduce the amount of the administrative penalty and order
the person to pay the full or reduced amount of the penalty.
(b) If the court does not sustain the finding that a
violation occurred, the court shall order that a penalty is not
owed.
Sec. 605.410. REMITTANCE OF PENALTY AND INTEREST. (a) If
the person paid the administrative penalty and if the amount of the
penalty is reduced or the penalty is not upheld by the court, the
court shall order, when the court's judgment becomes final, that
the appropriate amount plus accrued interest be remitted to the
person.
(b) The interest accrues at the rate charged on loans to
depository institutions by the New York Federal Reserve Bank.
(c) The interest shall be paid for the period beginning on
the date the penalty is paid and ending on the date the penalty is
remitted.
(d) If the person gave a supersedeas bond and the penalty is
not upheld by the court, the court shall order, when the court's
judgment becomes final, the release of the bond.
(e) If the person gave a supersedeas bond and the amount of
the penalty is reduced, the court shall order the release of the
bond after the person pays the reduced amount.
Sec. 605.411. ADMINISTRATIVE PROCEDURE. A proceeding under
this subchapter is a contested case under Chapter 2001, Government
Code.
SECTION 23. Subchapter I, Chapter 701, Occupations Code, is
amended by adding Section 701.408 to read as follows:
Sec. 701.408. EMERGENCY SUSPENSION. (a) The dietitians
board or a three-member committee of board members designated by
the board shall temporarily suspend the license of a license holder
if the board or committee determines from the evidence or
information presented to it that continued practice by the license
holder would constitute a continuing and imminent threat to the
public welfare.
(b) A license may be suspended under this section without
notice or hearing on the complaint if:
(1) action is taken to initiate proceedings for a
hearing before the State Office of Administrative Hearings
simultaneously with the temporary suspension; and
(2) a hearing is held as soon as practicable under this
chapter and Chapter 2001, Government Code.
(c) The State Office of Administrative Hearings shall hold a
preliminary hearing not later than the 14th day after the date of
the temporary suspension to determine if there is probable cause to
believe that a continuing and imminent threat to the public welfare
still exists. A final hearing on the matter shall be held not later
than the 61st day after the date of the temporary suspension.
SECTION 24. Chapter 701, Occupations Code, is amended by
adding Subchapter K to read as follows:
SUBCHAPTER K. ADMINISTRATIVE PENALTY
Sec. 701.501. IMPOSITION OF ADMINISTRATIVE PENALTY. The
dietitians board may impose an administrative penalty on a person
licensed under this chapter who violates this chapter or a rule or
order adopted under this chapter.
Sec. 701.502. AMOUNT OF ADMINISTRATIVE PENALTY. (a) The
amount of the administrative penalty may not be less than $50 or
more than $5,000 for each violation. Each day a violation continues
or occurs is a separate violation for the purpose of imposing a
penalty.
(b) The amount shall be based on:
(1) the seriousness of the violation, including the
nature, circumstances, extent, and gravity of the violation;
(2) the economic harm caused by the violation;
(3) the history of previous violations;
(4) the amount necessary to deter a future violation;
(5) efforts to correct the violation; and
(6) any other matter that justice may require.
Sec. 701.503. REPORT AND NOTICE OF VIOLATION AND PENALTY.
(a) If the commissioner or the commissioner's designee determines
that a violation occurred, the commissioner or the designee may
issue to the dietitians board a report stating:
(1) the facts on which the determination is based; and
(2) the commissioner's or the designee's
recommendation on the imposition of an administrative penalty,
including a recommendation on the amount of the penalty.
(b) Within 14 days after the date the report is issued, the
commissioner or the commissioner's designee shall give written
notice of the report to the person. The notice must:
(1) include a brief summary of the alleged violation;
(2) state the amount of the recommended administrative
penalty; and
(3) inform the person of the person's right to a
hearing on the occurrence of the violation, the amount of the
penalty, or both.
Sec. 701.504. PENALTY TO BE PAID OR HEARING REQUESTED.
(a) Within 10 days after the date the person receives the notice,
the person in writing may:
(1) accept the determination and recommended
administrative penalty of the commissioner or the commissioner's
designee; or
(2) make a request for a hearing on the occurrence of
the violation, the amount of the penalty, or both.
(b) If the person accepts the determination and recommended
penalty of the commissioner or the commissioner's designee, the
dietitians board by order shall approve the determination and
impose the recommended penalty.
Sec. 701.505. HEARING. (a) If the person requests a
hearing or fails to respond in a timely manner to the notice, the
commissioner or the commissioner's designee shall set a hearing and
give written notice of the hearing to the person.
(b) An administrative law judge of the State Office of
Administrative Hearings shall hold the hearing.
(c) The administrative law judge shall make findings of fact
and conclusions of law and promptly issue to the dietitians board a
proposal for a decision about the occurrence of the violation and
the amount of a proposed administrative penalty.
Sec. 701.506. DECISION BY DIETITIANS BOARD. (a) Based on
the findings of fact, conclusions of law, and proposal for
decision, the dietitians board by order may determine that:
(1) a violation occurred and impose an administrative
penalty; or
(2) a violation did not occur.
(b) The notice of the dietitians board's order given to the
person must include a statement of the right of the person to
judicial review of the order.
Sec. 701.507. OPTIONS FOLLOWING DECISION: PAY OR APPEAL.
(a) Within 30 days after the date the dietitians board's order
becomes final, the person shall:
(1) pay the administrative penalty; or
(2) file a petition for judicial review contesting the
occurrence of the violation, the amount of the penalty, or both.
(b) Within the 30-day period prescribed by Subsection (a), a
person who files a petition for judicial review may:
(1) stay enforcement of the penalty by:
(A) paying the penalty to the court for placement
in an escrow account; or
(B) giving the court a supersedeas bond approved
by the court that:
(i) is for the amount of the penalty; and
(ii) is effective until all judicial review
of the dietitians board's order is final; or
(2) request the court to stay enforcement of the
penalty by:
(A) filing with the court a sworn affidavit of
the person stating that the person is financially unable to pay the
penalty and is financially unable to give the supersedeas bond; and
(B) giving a copy of the affidavit to the
commissioner or the commissioner's designee by certified mail.
(c) If the commissioner or the commissioner's designee
receives a copy of an affidavit under Subsection (b)(2), the
commissioner or the designee may file with the court, within five
days after the date the copy is received, a contest to the
affidavit.
(d) The court shall hold a hearing on the facts alleged in
the affidavit as soon as practicable and shall stay the enforcement
of the penalty on finding that the alleged facts are true. The
person who files an affidavit has the burden of proving that the
person is financially unable to pay the penalty and to give a
supersedeas bond.
Sec. 701.508. COLLECTION OF PENALTY. (a) If the person
does not pay the administrative penalty and the enforcement of the
penalty is not stayed, the penalty may be collected.
(b) The attorney general may sue to collect the penalty.
Sec. 701.509. DETERMINATION BY COURT. (a) If the court
sustains the determination that a violation occurred, the court may
uphold or reduce the amount of the administrative penalty and order
the person to pay the full or reduced amount of the penalty.
(b) If the court does not sustain the finding that a
violation occurred, the court shall order that a penalty is not
owed.
Sec. 701.510. REMITTANCE OF PENALTY AND INTEREST. (a) If
the person paid the administrative penalty and if the amount of the
penalty is reduced or the penalty is not upheld by the court, the
court shall order, when the court's judgment becomes final, that
the appropriate amount plus accrued interest be remitted to the
person.
(b) The interest accrues at the rate charged on loans to
depository institutions by the New York Federal Reserve Bank.
(c) The interest shall be paid for the period beginning on
the date the penalty is paid and ending on the date the penalty is
remitted.
(d) If the person gave a supersedeas bond and the penalty is
not upheld by the court, the court shall order, when the court's
judgment becomes final, the release of the bond.
(e) If the person gave a supersedeas bond and the amount of
the penalty is reduced, the court shall order the release of the
bond after the person pays the reduced amount.
Sec. 701.511. ADMINISTRATIVE PROCEDURE. A proceeding under
this subchapter is a contested case under Chapter 2001, Government
Code.
SECTION 25. Chapter 1952, Occupations Code, is amended by
adding Subchapter F to read as follows:
SUBCHAPTER F. ADMINISTRATIVE PENALTY
Sec. 1952.251. IMPOSITION OF ADMINISTRATIVE PENALTY. The
department may 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) The
amount of the administrative penalty may not be less than $50 or
more than $5,000 for each violation. Each day a violation continues
or occurs is a separate violation for the purpose of imposing a
penalty.
(b) The amount shall be based on:
(1) the seriousness of the violation, including the
nature, circumstances, extent, and gravity of the violation;
(2) the economic harm caused by the violation;
(3) the history of previous violations;
(4) the amount necessary to deter a future violation;
(5) efforts to correct the violation; and
(6) any other matter that justice may require.
Sec. 1952.253. REPORT AND NOTICE OF VIOLATION AND PENALTY.
(a) If the commissioner of public health or the commissioner's
designee determines that a violation occurred, the commissioner or
the designee may issue to the department a report stating:
(1) the facts on which the determination is based; and
(2) the commissioner's or the designee's
recommendation on the imposition of an administrative penalty,
including a recommendation on the amount of the penalty.
(b) Within 14 days after the date the report is issued, the
commissioner of public health or the commissioner's designee shall
give written notice of the report to the person. The notice must:
(1) include a brief summary of the alleged violation;
(2) state the amount of the recommended administrative
penalty; and
(3) inform the person of the person's right to a
hearing on the occurrence of the violation, the amount of the
penalty, or both.
Sec. 1952.254. PENALTY TO BE PAID OR HEARING REQUESTED.
(a) Within 10 days after the date the person receives the notice,
the person in writing may:
(1) accept the determination and recommended
administrative penalty of the commissioner of public health or the
commissioner's designee; or
(2) make a request for a hearing on the occurrence of
the violation, the amount of the penalty, or both.
(b) If the person accepts the determination and recommended
penalty of the commissioner of public health or the commissioner's
designee, the department by order shall approve the determination
and impose the recommended penalty.
Sec. 1952.255. HEARING. (a) If the person requests a
hearing or fails to respond in a timely manner to the notice, the
commissioner of public health or the commissioner's designee shall
set a hearing and give written notice of the hearing to the person.
(b) An administrative law judge of the State Office of
Administrative Hearings shall hold the hearing.
(c) The administrative law judge shall 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) Based on the
findings of fact, conclusions of law, and proposal for decision,
the department by order may determine that:
(1) a violation occurred and impose an administrative
penalty; or
(2) a violation did not occur.
(b) The notice of the department's order given to the person
must include a statement of the right of the person to judicial
review of the order.
Sec. 1952.257. OPTIONS FOLLOWING DECISION: PAY OR APPEAL.
(a) Within 30 days after the date the department's order becomes
final, the person shall:
(1) pay the administrative penalty; or
(2) file a petition for judicial review contesting the
occurrence of the violation, the amount of the penalty, or both.
(b) Within the 30-day period prescribed by Subsection (a), a
person who files a petition for judicial review may:
(1) stay enforcement of the penalty by:
(A) paying the penalty to the court for placement
in an escrow account; or
(B) giving the court a supersedeas bond approved
by the court that:
(i) is for the amount of the penalty; and
(ii) is effective until all judicial review
of the department's order is final; or
(2) request the court to stay enforcement of the
penalty by:
(A) filing with the court a sworn affidavit of
the person stating that the person is financially unable to pay the
penalty and is financially unable to give the supersedeas bond; and
(B) giving a copy of the affidavit to the
commissioner of public health or the commissioner's designee by
certified mail.
(c) If the commissioner of public health or the
commissioner's designee receives a copy of an affidavit under
Subsection (b)(2), the commissioner or the designee may file with
the court, within five days after the date the copy is received, a
contest to the affidavit.
(d) The court shall hold a hearing on the facts alleged in
the affidavit as soon as practicable and shall stay the enforcement
of the penalty on finding that the alleged facts are true. The
person who files an affidavit has the burden of proving that the
person is financially unable to pay the penalty and to give a
supersedeas bond.
Sec. 1952.258. COLLECTION OF PENALTY. (a) If the person
does not pay the administrative penalty and the enforcement of the
penalty is not stayed, the penalty may be collected.
(b) The attorney general may sue to collect the penalty.
Sec. 1952.259. DETERMINATION BY COURT. (a) If the court
sustains the determination that a violation occurred, the court may
uphold or reduce the amount of the administrative penalty and order
the person to pay the full or reduced amount of the penalty.
(b) If the court does not sustain the finding that a
violation occurred, the court shall order that a penalty is not
owed.
Sec. 1952.260. REMITTANCE OF PENALTY AND INTEREST. (a) If
the person paid the administrative penalty and if the amount of the
penalty is reduced or the penalty is not upheld by the court, the
court shall order, when the court's judgment becomes final, that
the appropriate amount plus accrued interest be remitted to the
person.
(b) The interest accrues at the rate charged on loans to
depository institutions by the New York Federal Reserve Bank.
(c) The interest shall be paid for the period beginning on
the date the penalty is paid and ending on the date the penalty is
remitted.
(d) If the person gave a supersedeas bond and the penalty is
not upheld by the court, the court shall order, when the court's
judgment becomes final, the release of the bond.
(e) If the person gave a supersedeas bond and the amount of
the penalty is reduced, the court shall order the release of the
bond after the person pays the reduced amount.
Sec. 1952.261. ADMINISTRATIVE PROCEDURE. A proceeding
under this subchapter is a contested case under Chapter 2001,
Government Code.
SECTION 26. Chapter 1953, Occupations Code, is amended by
adding Subchapter G to read as follows:
SUBCHAPTER G. ADMINISTRATIVE PENALTY
Sec. 1953.301. IMPOSITION OF ADMINISTRATIVE PENALTY. The
board may 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) The
amount of the administrative penalty may not be less than $50 or
more than $5,000 for each violation. Each day a violation continues
or occurs is a separate violation for the purpose of imposing a
penalty.
(b) The amount shall be based on:
(1) the seriousness of the violation, including the
nature, circumstances, extent, and gravity of the violation;
(2) the economic harm caused by the violation;
(3) the history of previous violations;
(4) the amount necessary to deter a future violation;
(5) efforts to correct the violation; and
(6) any other matter that justice may require.
Sec. 1953.303. REPORT AND NOTICE OF VIOLATION AND PENALTY.
(a) If the commissioner of public health or the commissioner's
designee determines that a violation occurred, the commissioner or
the designee may issue to the board a report stating:
(1) the facts on which the determination is based; and
(2) the commissioner's or the designee's
recommendation on the imposition of an administrative penalty,
including a recommendation on the amount of the penalty.
(b) Within 14 days after the date the report is issued, the
commissioner of public health or the commissioner's designee shall
give written notice of the report to the person. The notice must:
(1) include a brief summary of the alleged violation;
(2) state the amount of the recommended administrative
penalty; and
(3) inform the person of the person's right to a
hearing on the occurrence of the violation, the amount of the
penalty, or both.
Sec. 1953.304. PENALTY TO BE PAID OR HEARING REQUESTED.
(a) Within 10 days after the date the person receives the notice,
the person in writing may:
(1) accept the determination and recommended
administrative penalty of the commissioner of public health or the
commissioner's designee; or
(2) make a request for a hearing on the occurrence of
the violation, the amount of the penalty, or both.
(b) If the person accepts the determination and recommended
penalty of the commissioner of public health or the commissioner's
designee, the board by order shall approve the determination and
impose the recommended penalty.
Sec. 1953.305. HEARING. (a) If the person requests a
hearing or fails to respond in a timely manner to the notice, the
commissioner of public health or the commissioner's designee shall
set a hearing and give written notice of the hearing to the person.
(b) An administrative law judge of the State Office of
Administrative Hearings shall hold the hearing.
(c) The administrative law judge shall 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. (a) Based on the
findings of fact, conclusions of law, and proposal for decision,
the board by order may determine that:
(1) a violation occurred and impose an administrative
penalty; or
(2) a violation did not occur.
(b) The notice of the board's order given to the person must
include a statement of the right of the person to judicial review of
the order.
Sec. 1953.307. OPTIONS FOLLOWING DECISION: PAY OR APPEAL.
(a) Within 30 days after the date the board's order becomes final,
the person shall:
(1) pay the administrative penalty; or
(2) file a petition for judicial review contesting the
occurrence of the violation, the amount of the penalty, or both.
(b) Within the 30-day period prescribed by Subsection (a), a
person who files a petition for judicial review may:
(1) stay enforcement of the penalty by:
(A) paying the penalty to the court for placement
in an escrow account; or
(B) giving the court a supersedeas bond approved
by the court that:
(i) is for the amount of the penalty; and
(ii) is effective until all judicial review
of the board's order is final; or
(2) request the court to stay enforcement of the
penalty by:
(A) filing with the court a sworn affidavit of
the person stating that the person is financially unable to pay the
penalty and is financially unable to give the supersedeas bond; and
(B) giving a copy of the affidavit to the
commissioner of public health or the commissioner's designee by
certified mail.
(c) If the commissioner of public health or the
commissioner's designee receives a copy of an affidavit under
Subsection (b)(2), the commissioner or the designee may file with
the court, within five days after the date the copy is received, a
contest to the affidavit.
(d) The court shall hold a hearing on the facts alleged in
the affidavit as soon as practicable and shall stay the enforcement
of the penalty on finding that the alleged facts are true. The
person who files an affidavit has the burden of proving that the
person is financially unable to pay the penalty and to give a
supersedeas bond.
Sec. 1953.308. COLLECTION OF PENALTY. (a) If the person
does not pay the administrative penalty and the enforcement of the
penalty is not stayed, the penalty may be collected.
(b) The attorney general may sue to collect the penalty.
Sec. 1953.309. DETERMINATION BY COURT. (a) If the court
sustains the determination that a violation occurred, the court may
uphold or reduce the amount of the administrative penalty and order
the person to pay the full or reduced amount of the penalty.
(b) If the court does not sustain the finding that a
violation occurred, the court shall order that a penalty is not
owed.
Sec. 1953.310. REMITTANCE OF PENALTY AND INTEREST. (a) If
the person paid the administrative penalty and if the amount of the
penalty is reduced or the penalty is not upheld by the court, the
court shall order, when the court's judgment becomes final, that
the appropriate amount plus accrued interest be remitted to the
person.
(b) The interest accrues at the rate charged on loans to
depository institutions by the New York Federal Reserve Bank.
(c) The interest shall be paid for the period beginning on
the date the penalty is paid and ending on the date the penalty is
remitted.
(d) If the person gave a supersedeas bond and the penalty is
not upheld by the court, the court shall order, when the court's
judgment becomes final, the release of the bond.
(e) If the person gave a supersedeas bond and the amount of
the penalty is reduced, the court shall order the release of the
bond after the person pays the reduced amount.
Sec. 1953.311. ADMINISTRATIVE PROCEDURE. A proceeding
under this subchapter is a contested case under Chapter 2001,
Government Code.
SECTION 27. Chapter 462, Acts of the 68th Legislature,
Regular Session, 1983 (Article 4413(51), Vernon's Texas Civil
Statutes), is amended by adding Sections 13D and 13E to read as
follows:
Sec. 13D. EMERGENCY SUSPENSION. (a) The council or a
three-member committee of council members designated by the council
shall 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 the
public welfare.
(b) A registration may be suspended under this section
without notice or hearing on the complaint if:
(1) action is taken to initiate proceedings for a
hearing before the State Office of Administrative Hearings
simultaneously with the temporary suspension; and
(2) a hearing is held as soon as practicable under this
Act and Chapter 2001, Government Code.
(c) The State Office of Administrative Hearings shall hold a
preliminary hearing not later than the 14th day after the date of
the temporary suspension to determine if there is probable cause to
believe that a continuing and imminent threat to the public welfare
still exists. A final hearing on the matter shall be held not later
than the 61st day after the date of the temporary suspension.
Sec. 13E. ADMINISTRATIVE PENALTY. (a) The council may
impose an administrative penalty on a person registered under this
Act who violates this Act or a rule or order adopted under this Act.
(b) The amount of the administrative penalty may not be less
than $50 or more than $5,000 for each violation. Each day a
violation continues or occurs is a separate violation for the
purpose of imposing a penalty. The amount shall be based on:
(1) the seriousness of the violation, including the
nature, circumstances, extent, and gravity of the violation;
(2) the economic harm caused by the violation;
(3) the history of previous violations;
(4) the amount necessary to deter a future violation;
(5) efforts to correct the violation; and
(6) any other matter that justice may require.
(c) If the commissioner of public health or the
commissioner's designee determines that a violation occurred, the
commissioner or the designee may issue to the council a report
stating:
(1) the facts on which the determination is based; and
(2) the commissioner's or the designee's
recommendation on the imposition of an administrative penalty,
including a recommendation on the amount of the penalty.
(d) Within 14 days after the date the report is issued, the
commissioner of public health or the commissioner's designee shall
give written notice of the report to the person. The notice must:
(1) include a brief summary of the alleged violation;
(2) state the amount of the recommended administrative
penalty; and
(3) inform the person of the person's right to a
hearing on the occurrence of the violation, the amount of the
penalty, or both.
(e) Within 10 days after the date the person receives the
notice, the person in writing may:
(1) accept the determination and recommended
administrative penalty of the commissioner of public health or the
commissioner's designee; or
(2) make a request for a hearing on the occurrence of
the violation, the amount of the penalty, or both.
(f) If the person accepts the determination and recommended
penalty of the commissioner of public health or the commissioner's
designee, the council by order shall approve the determination and
impose the recommended penalty.
(g) If the person requests a hearing or fails to respond in a
timely manner to the notice, the commissioner of public health or
the commissioner's designee shall set a hearing and give written
notice of the hearing to the person.
(h) An administrative law judge of the State Office of
Administrative Hearings shall hold the hearing.
(i) The administrative law judge shall make findings of fact
and conclusions of law and promptly issue to the council a proposal
for a decision about the occurrence of the violation and the amount
of a proposed administrative penalty.
(j) Based on the findings of fact, conclusions of law, and
proposal for decision, the council by order may determine that:
(1) a violation occurred and impose an administrative
penalty; or
(2) a violation did not occur.
(k) The notice of the council's order given to the person
must include a statement of the right of the person to judicial
review of the order.
(l) Within 30 days after the date the council's order
becomes final, the person shall:
(1) pay the administrative penalty; or
(2) file a petition for judicial review contesting the
occurrence of the violation, the amount of the penalty, or both.
(m) Within the 30-day period prescribed by Subsection (l) of
this section, a person who files a petition for judicial review may:
(1) stay enforcement of the penalty by:
(A) paying the penalty to the court for placement
in an escrow account; or
(B) giving the court a supersedeas bond approved
by the court that:
(i) is for the amount of the penalty; and
(ii) is effective until all judicial review
of the council's order is final; or
(2) request the court to stay enforcement of the
penalty by:
(A) filing with the court a sworn affidavit of
the person stating that the person is financially unable to pay the
penalty and is financially unable to give the supersedeas bond; and
(B) giving a copy of the affidavit to the
commissioner of public health or the commissioner's designee by
certified mail.
(n) If the commissioner of public health or the
commissioner's designee receives a copy of an affidavit under
Subsection (m)(2) of this section, the commissioner or the designee
may file with the court, within five days after the date the copy is
received, a contest to the affidavit.
(o) The court shall hold a hearing on the facts alleged in
the affidavit as soon as practicable and shall stay the enforcement
of the penalty on finding that the alleged facts are true. The
person who files an affidavit has the burden of proving that the
person is financially unable to pay the penalty and to give a
supersedeas bond.
(p) If the person does not pay the administrative penalty
and the enforcement of the penalty is not stayed, the penalty may be
collected. The attorney general may sue to collect the penalty.
(q) If the court sustains the determination that a violation
occurred, the court may uphold or reduce the amount of the
administrative penalty and order the person to pay the full or
reduced amount of the penalty. If the court does not sustain the
finding that a violation occurred, the court shall order that a
penalty is not owed.
(r) If the person paid the administrative penalty and if the
amount of the penalty is reduced or the penalty is not upheld by the
court, the court shall order, when the court's judgment becomes
final, that the appropriate amount plus accrued interest be
remitted to the person. The interest accrues at the rate charged on
loans to depository institutions by the New York Federal Reserve
Bank. The interest shall be paid for the period beginning on the
date the penalty is paid and ending on the date the penalty is
remitted.
(s) If the person gave a supersedeas bond and the penalty is
not upheld by the court, the court shall order, when the court's
judgment becomes final, the release of the bond. If the person gave
a supersedeas bond and the amount of the penalty is reduced, the
court shall order the release of the bond after the person pays the
reduced amount.
(t) A proceeding under this section is a contested case
under Chapter 2001, Government Code.
SECTION 28. (a) This Act takes effect September 1, 2003.
(b) The change in law made by this Act to Sections 505.507,
602.302, and 605.356, Occupations Code, applies only to an offense
committed on or after the effective date of this Act. For purposes
of this subsection, an offense is committed before the effective
date of this Act if any element of the offense occurs before the
effective date. An offense committed before the effective date of
this Act is governed by the law in effect on the date the offense was
committed, and the former law is continued in effect for that
purpose.
(c) The change in law made by this Act relating to
imposition of an administrative penalty or civil penalty applies
only to an act or omission that occurs on or after the effective
date of this Act. An act or omission that occurs before the
effective date of this Act is governed by the law in effect on the
date the act or omission occurred, and the former law is continued
in effect for that purpose.
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