HBA-MPM S.B. 846 76(R) BILL ANALYSIS Office of House Bill AnalysisS.B. 846 By: Carona Public Health 4/21/1999 Engrossed BACKGROUND AND PURPOSE Current law requires a person who is taking the barber examination to pay a $10 fee for such an examination. It is estimated that these examinations cost the agency $35 to administer. Furthermore, the Texas Barber Law does not provide the State Board of Barber Examiners (board) the ability to assess administrative fines and civil penalties for violations of the law. S.B. 846 authorizes the board to set the examination fee that is charged to an applicant and provides that any violator of the Texas Barber law be assessed an administrative penalty. 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. (Chapter 65, Acts of the 41st Legislature, 1st Called Session, 1929), to require fees paid to the State Board of Barber Examiners (board) by an applicant for an examination to determine the applicant's fitness to receive a certificate of registration to practice barbering or to practice as a barber technician to be set by the board in an amount not to exceed $50, rather than $10. SECTION 2. Amends Section 24, Article 8407a, V.T.C.S. (Chapter 65, Acts of the 41st Legislature, 1st Called Session, 1929), as follows: Sec. 24. New title: VIOLATIONS. Provides a list of violations of this Act for which an administrative penalty may be imposed under Section 24A of this Act. Deletes language setting forth a list of offenses which constitute a misdemeanor punishable upon conviction in a court of competent judgment by a fine of $25 to $200. Makes a nonsubstantive change. SECTION 3. Amends Article 8407a, V.T.C.S. (Chapter 65, Acts of the 41st Legislature, 1st Called Session, 1929), by adding Sections 24A through 24M, as follows: Sec. 24A. IMPOSITION OF ADMINISTRATIVE PENALTY. Authorizes the board to impose an administrative penalty (penalty) on a person for a violation under Section 24 of this Act. Sec. 24B. AMOUNT OF ADMINISTRATIVE PENALTY. Prohibits the penalty from exceeding $1,000. Provides that each day a violation continues or occurs is a separate violation for purposes of imposing a penalty. Requires the penalty amount to be based on certain factors. Sec. 24C. REPORT AND NOTICE OF VIOLATION AND ADMINISTRATIVE PENALTY. Authorizes the executive director of the board, if determining that a violation occurred, to issue the board a report stating the facts upon which the determination is based and a recommendation on the imposition of a penalty, including a penalty amount. Requires the executive director to give written notice of the report to the person no later than the 14th day after the report is issued. Provides that the notice must include certain information with respect to the violation. Sec. 24D. ADMINISTRATIVE PENALTY TO BE PAID OR HEARING REQUESTED. Authorizes a person, no later than the 20th day after receiving notice, to either accept the determination and recommended penalty or to make a request for a hearing on the occurrence of the violation, the penalty amount, or both. Requires the board, by order, to approve the determination and impose the penalty if the person accepts the determination and penalty. Sec. 24E. HEARING. Requires the executive director to set a hearing and give written notice to a person, if the person requests a hearing or fails to respond to the notice in a timely manner. Authorizes an administrative law judge of the State Office of Administrative Hearings to hold the hearing. Authorizes the administrative law judge to make findings of fact and conclusions of law and promptly issue the board a proposal for a decision about the occurrence of the violation and any proposed penalty amount. Sec. 24F. DECISION BY BOARD. Authorizes the board, by order and based on findings of fact and conclusions of law, to find that a violation occurred and impose a penalty or find that a violation did not occur. Provides that 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 a person to pay the penalty or file a petition for judicial review contesting the occurrence of the violation, the penalty amount, or both, not later than the 30th day after the board's order becomes final. Sec. 24H. STAY OF ENFORCEMENT OF ADMINISTRATIVE PENALTY. (a) Authorizes a person who files a petition for judicial review, within a 30-day period prescribed by Section 24G of this Act, to stay enforcement of the administrative penalty by paying the penalty to the court for placement in escrow or giving the court a supersedeas bond for the penalty amount and that is effective until all judicial review of the board's order is final. Optionally, authorizes the person to request that the court stay enforcement of the penalty by filing a sworn affidavit stating that the person is financially unable to pay the penalty or the supersedeas bond and giving a copy to the executive director by certified mail. (b) Authorizes the executive director, if the executive director receives a copy of an affidavit under Subsection (a), to file with the court, no later than the fifth day after the copy is received, a contest to the affidavit. Requires the court to hold a hearing on the facts alleged in the affidavit a soon as practicable and to stay enforcement of the penalty on finding that the alleged facts are true. Provides that the person filing the affidavit has the burden of proving that financial inability to pay the penalty and give a supersedeas bond. Sec. 24I. COLLECTION OF ADMINISTRATIVE PENALTY. Authorizes the penalty to be collected if the person does not pay it and the enforcement of the penalty is not stayed. Authorizes the attorney general to sue to collect the penalty. Sec. 24J. DECISION BY COURT. Authorizes the court to uphold or reduce the penalty amount and to order the person to pay the full or reduced penalty, if it sustains the finding that a violation occurred. Requires the court to order the a penalty is not owed, if it does not sustain the finding that a violation occurred. Sec. 24K. REMITTANCE OF ADMINISTRATIVE PENALTY AND INTEREST. Requires the court to order, upon final judgment, that the appropriate penalty amount plus interest be remitted to the person, if the person paid the penalty and the penalty amount is reduced or the penalty is not upheld by the court. Provides that interest accrues at the rate charged on loans to depository institutions by the New York Federal Reserve Bank. Requires interest to be paid between the date the penalty is paid and the date it is remitted. Sec. 24L. RELEASE OF BOND. Requires the court to order, upon final judgment, the release of a bond, if the person gave a supersedeas bond and the penalty is not upheld. Requires the court to order the release of the bond after the person pays a reduced amount of the penalty, if the person paid a supersedeas bond and the penalty amount is reduced. Sec. 24M. ADMINISTRATION PROCEDURE. Provides that a proceeding to impose an administrative penalty is considered to be a contested one under Chapter 2001 (Administrative Procedure), Government Code. SECTION 4. Effective date: September 1, 1999. Makes application of this Act prospective. SECTION 5. Emergency clause.