HBA-NMO H.B. 3094 76(R) BILL ANALYSIS Office of House Bill AnalysisH.B. 3094 By: Gutierrez Public Health 4/1/1999 Introduced BACKGROUND AND PURPOSE Current law requires a person applying for a barber or barber technician certificate to pay an examination fee of $10. Estimations put the cost of administering these examinations at $35 each. Current law also sets forth certain violations of law regulating barbers punishable by misdemeanor fine. However, no portion of any fine collected is remitted to the State Board of Barber Examiners (board). H.B. 3094 requires the board to set the examination fee at an amount not to exceed $50, and establishes administrative penalties, rather than misdemeanor fines, for certain violations of the law regulating barbers. RULEMAKING AUTHORITY It is the opinion of the Office of House Bill Analysis that this bill does not expressly delegate any additional rulemaking authority to a state officer, department, agency, or institution. SECTION BY SECTION ANALYSIS SECTION 1. Amends Section 23(b), Article 8407a, V.T.C.S., to require that the examination fees paid by an applicant for a barber or barber technician certificate of registration be, rather than $10, set by the State Board of Barber Examiners (board) in an amount not to exceed $50. Makes nonsubstantive changes. SECTION 2. Amends Section 24, Article 8407a, V.T.C.S., as follows: Sec. 24. New Title: VIOLATIONS. Sets forth violations relating to practice as a barber for which an administrative penalty may be imposed under Section 24A, rather than requiring that the same violations constitute a misdemeanor punishable by a fine. SECTION 3. Amends Article 8407a, V.T.C.S., by adding Sections 24A-24M, as follows: Sec. 24A. IMPOSITION OF ADMINISTRATIVE PENALTY. Authorizes the board to impose an administrative penalty on a person for a violation under Section 24. Sec. 24B. AMOUNT OF ADMINISTRATIVE PENALTY. Prohibits the amount of the administrative penalty from exceeding $1,000. Provides that each day a violation continues is a separate violation for purposes of imposing a penalty. Requires the amount of the fine to be based on certain factors. Sec. 24.C. REPORT AND NOTICE OF VIOLATION AND ADMINISTRATIVE PENALTY. Authorizes the executive director of the board (executive director), if the executive director determines that a person has committed a violation, to issue to the board a report stating the basis for the determination and the executive director's recommendation on the both the imposition and amount of the administrative penalty. Requires the executive director, not later than the 14th day after the report was issued, to give written notice of the report to the person. Sets forth the contents of the notice. Sec. 24D. ADMINISTRATIVE PENALTY TO BE PAID OR HEARING REQUESTED. Authorizes the person in writing, not later than the 20th day after receiving the notice, 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. Requires the board, by order, if the person accepts the determination and recommended penalty, to approve the determination and impose the penalty. Sec. 24E. HEARING. Requires the executive director, 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. Requires an administrative law judge of the State Office of Administrative Hearings to hold the hearing. 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 concerning the occurrence of the violation and the amount of the penalty. Sec. 24F. DECISION BY BOARD. Authorizes the board, by order, based on the input of the administrative law judge, to find that a violation occurred and impose a penalty, or find that a violation did not occur. Provides that 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. 24G. OPTIONS FOLLOWING DECISION: PAY OR APPEAL. Requires the person, not later than 30 days after the date the board's order becomes final, 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. Sec. 24H. STAY OF ENFORCEMENT OF ADMINISTRATIVE PENALTY. (a) Authorizes a person who files a petition for judicial review, not later than 30 days after the date the board's order becomes final, to stay the enforcement of the administrative penalty by paying the penalty to the court for placement in an escrow account or giving the court a supersedeas bond approved by the court; or request the court to stay enforcement of the penalty by filing an affidavit stating financial inability to pay the penalty or give bond and giving a copy of the affidavit to the executive director by certified mail. (b) Authorizes the executive director to file with the court, not later than the fifth day after receiving a copy of the affidavit, a contest to the affidavit. Requires the court to hold a hearing on the facts alleged in the affidavit as soon as practical and stay the enforcement of the penalty on finding that the alleged facts are true. Provides that the person who files an affidavit shoulders the burden of proof of financial inability. Sec. 24I. COLLECTION OF ADMINISTRATIVE PENALTY. Authorizes that the administrative penalty be collected if the person does not pay the penalty and the enforcement of the penalty is not stayed. Authorizes the attorney general to sue to collect penalty. Sec. 24J. DECISION BY COURT. Authorizes the court, if it sustains the finding 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. Requires the court, if it does not sustain the finding that a violation occurred, to order that the penalty is not owed. Sec. 24K. REMITTANCE OF ADMINISTRATIVE PENALTY AND INTEREST. Requires the court, 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, to order that the appropriate amount plus accrued interest be remitted to the person, when its judgment becomes final. Sets forth the accrual rate and payment of interest. Sec. 24L. Requires the court, if the person gave a supersedeas bond and the administrative penalty is not upheld by the court, to order the release of the bond, when its judgment becomes final. 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. 24M. ADMINISTRATIVE PROCEDURE. Provides that a proceeding to impose an administrative penalty is considered to be a contested case under Chapter 2001 (Administrative Procedure), Government Code. SECTION 4. Effective date: September 1, 1999. Makes application of this Act prospective. SECTION 5. Emergency clause.