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.