Bill Text: TX HB2459 | 2023-2024 | 88th Legislature | Enrolled
Bill Title: Relating to the administration of violations and administrative penalties of the employment of children.
Spectrum: Partisan Bill (Democrat 3-0)
Status: (Passed) 2023-06-12 - Effective on 9/1/23 [HB2459 Detail]
Download: Texas-2023-HB2459-Enrolled.html
H.B. No. 2459 |
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relating to the administration of violations and administrative | ||
penalties of the employment of children. | ||
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: | ||
SECTION 1. Sections 51.033 and 51.034, Labor Code, are | ||
repealed. | ||
SECTION 2. Subchapter D, Chapter 51, Labor Code, is amended | ||
by adding Sections 51.033 through 51.039 to read as follows: | ||
Sec. 51.033. ADMINISTRATIVE PENALTY. (a) If a child labor | ||
investigator determines that a person who employs a child, or | ||
individual restricted by Section 51.016(b), has violated this | ||
chapter or a rule adopted under this chapter, the investigator may | ||
assess an administrative penalty against that person as provided by | ||
this subchapter. | ||
(b) The penalty for a violation may be in an amount not to | ||
exceed $10,000. | ||
(c) The amount of the penalty shall be based on: | ||
(1) the seriousness of the violation, including the | ||
nature, circumstances, extent, and gravity of any prohibited acts; | ||
(2) the history of previous violations; | ||
(3) the amount necessary to deter future violations; | ||
(4) efforts to correct the violation; and | ||
(5) any other matter that justice may require. | ||
Sec. 51.034. PRELIMINARY DETERMINATION ORDER. (a) If, | ||
after examination of a possible violation and the facts relating to | ||
that possible violation, the child labor investigator determines | ||
that a violation has occurred, the child labor investigator shall | ||
issue a preliminary determination order to the person charged with | ||
the violation. | ||
(b) The preliminary determination order shall state the | ||
facts on which the preliminary determination order is based, the | ||
occurrence of a violation, the fact that an administrative penalty | ||
is to be imposed, and the amount of the penalty. | ||
(c) The preliminary determination order must inform the | ||
person that the person has a right to a hearing on the occurrence of | ||
the violation, the amount of the penalty, or both the occurrence of | ||
the violation and the amount of the penalty. | ||
(d) The child labor investigator shall mail notice of the | ||
preliminary determination order to the person's last known address, | ||
as reflected by commission records. | ||
Sec. 51.0341. ESTABLISHMENT OF CHILD LABOR APPEAL | ||
TRIBUNALS. (a) The commission shall establish one or more | ||
impartial child labor appeal tribunals to hear and decide disputed | ||
preliminary determination orders if the commission determines that | ||
establishment of those tribunals is necessary to ensure prompt | ||
disposal of child labor cases on appeal. | ||
(b) Each child labor appeal tribunal shall be composed of a | ||
salaried examiner appointed by the commission. | ||
Sec. 51.0342. REDETERMINATION BY CHILD LABOR INVESTIGATOR. | ||
(a) If the child labor investigator discovers an error in | ||
connection with a preliminary determination order or discovers | ||
additional information not previously available, the child labor | ||
investigator, within the period specified in Section 51.035, may | ||
reconsider and reissue the preliminary determination order. An | ||
investigator's reissued preliminary determination order voids and | ||
replaces the order requiring correction. | ||
(b) A reissued preliminary determination order becomes | ||
final unless a party files an appeal from the reissued preliminary | ||
determination order within the period specified in Section 51.035. | ||
The period to request an appeal shall begin on the date the examiner | ||
mails the reissued preliminary determination order. | ||
(c) Notwithstanding Subsection (a) of this section, if a | ||
child labor investigator mails a preliminary determination order to | ||
a person's incorrect address solely because of the child labor | ||
investigator's own error, the child labor investigator may reissue | ||
a preliminary determination order to the party's correct address at | ||
any time. | ||
Sec. 51.035. REQUEST FOR HEARING ON PRELIMINARY ORDER. (a) | ||
A person may request a hearing before a child labor appeal tribunal | ||
to appeal a preliminary determination order made under Section | ||
51.034. | ||
(b) The request for hearing must be made in writing not | ||
later than the 21st day after the date the child labor investigator | ||
mails the notice of the preliminary determination order. | ||
Sec. 51.0351. PRELIMINARY ORDER FINAL IF HEARING NOT | ||
REQUESTED. If the person does not request a hearing to appeal a | ||
preliminary determination order within the period prescribed by | ||
Section 51.035, the order becomes the final order of the commission | ||
for all purposes, and the person is not entitled to judicial review | ||
of the order under this subchapter. | ||
Sec. 51.0352. PAYMENT REQUIRED IF HEARING NOT REQUESTED. A | ||
person that does not request a hearing within the period prescribed | ||
by Section 51.035 to appeal a preliminary determination order shall | ||
pay the penalty amount ordered to the commission not later than the | ||
21st day after the date the commission mails notice of the order. | ||
Sec. 51.0353. NOTICE; TIME FOR HEARING. (a) A notice | ||
regarding an administrative hearing conducted under this | ||
subchapter must be mailed by the child labor appeal tribunal not | ||
later than the 21st day after the date a request for the hearing is | ||
received by the commission. | ||
(b) As soon as practicable, but not later than the 45th day | ||
after the date a notice is mailed under Subsection (a), the tribunal | ||
shall conduct the hearing. | ||
Sec. 51.0354. HEARING PROCEDURES. (a) A hearing conducted | ||
under this subchapter is subject to the rules and hearings | ||
procedures used by the commission in the determination of a claim | ||
for unemployment compensation benefits. | ||
(b) The hearing is not subject to Chapter 2001, Government | ||
Code. | ||
Sec. 51.0355. CONSIDERATION OF PRELIMINARY DETERMINATION | ||
ORDER. The child labor appeal tribunal may modify, affirm, or | ||
rescind a preliminary determination order. | ||
Sec. 51.0356. ORDER AFTER HEARING. After a hearing, the | ||
child labor appeal tribunal shall enter a written order for the | ||
payment of any penalty the child labor appeal tribunal assesses. | ||
Sec. 51.036. NOTICE AND FINALITY OF ORDER. (a) The child | ||
labor appeal tribunal shall mail to each party to the appeal notice | ||
of: | ||
(1) the decision; | ||
(2) the violation; and | ||
(3) the amount of any penalty assessed. | ||
(b) The notice shall be mailed to a party's last known | ||
address, as shown by commission records. | ||
(c) The order of the child labor appeal tribunal becomes | ||
final 14 days after the date on which it is mailed unless reopened | ||
by the child labor tribunal or a party to the decision initiates a | ||
further appeal to the commission as provided by this subchapter. | ||
Sec. 51.0361. REMOVAL OR TRANSFER OF CLAIM PENDING BEFORE | ||
CHILD LABOR APPEAL TRIBUNAL. (a) The commission by order may | ||
remove to itself or transfer to another child labor appeal tribunal | ||
the proceedings pending before a child labor appeal tribunal. | ||
(b) The commission promptly shall mail to the parties to the | ||
proceedings a notice of the order under Subsection (a). | ||
(c) A quorum of the commission shall hear a proceeding | ||
removed to the commission under Subsection (a). | ||
Sec. 51.0362. COMMISSION REVIEW OF CHILD LABOR APPEAL | ||
TRIBUNAL ORDER. The commission may: | ||
(1) on its own motion: | ||
(A) affirm, modify, or set aside an order issued | ||
under Section 51.036 on the basis of the evidence previously | ||
submitted in the case; or | ||
(B) direct the taking of additional evidence; or | ||
(2) permit any of the parties affected by the order to | ||
initiate a further appeal before the commission. | ||
Sec. 51.0363. NOTICE OF COMMISSION ACTION. (a) The | ||
commission shall mail to each party to the appeal under Section | ||
51.0362 notice of: | ||
(1) the commission's decision; | ||
(2) the violation; | ||
(3) the amount of any penalty assessed; and | ||
(4) the person's right to judicial review of the order. | ||
(b) The notice shall be mailed to a party's last known | ||
address, as shown by commission records. | ||
Sec. 51.0364. FINALITY OF COMMISSION ORDER. An order of the | ||
commission becomes final 14 days after the date the order is mailed | ||
unless before that date: | ||
(1) the commission by order reopens the appeal; or | ||
(2) a party to the appeal files a written motion for | ||
rehearing. | ||
Sec. 51.037. JUDICIAL REVIEW. (a) A person who has | ||
exhausted the person's administrative remedies under this chapter, | ||
other than a motion for rehearing, may bring a suit to appeal the | ||
order. | ||
(b) The suit must be filed not later than the 30th day after | ||
the date the final order is mailed. | ||
(c) The commission must be made a defendant in the suit. | ||
(d) The suit must be brought in the county of the person's | ||
residence. If the person is not a resident of this state, the suit | ||
must be brought in the county in this state in which the person has | ||
its principal place of business. | ||
(e) Judicial review of the order of the commission is in the | ||
manner applied to an appeal from a final decision under Subtitle A, | ||
Title 4. The standard of review is under the substantial evidence | ||
rule. | ||
(f) If the court sustains the occurrence of the violation, | ||
the court may uphold or reduce the amount of the penalty and order | ||
the person to pay the full or reduced amount of the penalty. If the | ||
court does not sustain the occurrence of the violation, the court | ||
shall order that a penalty is not owed. | ||
Sec. 51.038. PAYMENT TO COMMISSION; ESCROW PENDING REVIEW. | ||
(a) Not later than the 30th day after the date a commission order | ||
becomes final, the person required to pay a penalty shall: | ||
(1) pay the amount to the commission; or | ||
(2) if the person files a petition for judicial review | ||
in a court of competent jurisdiction contesting the final order, | ||
send the amount to the commission for deposit in an | ||
interest-bearing escrow account. | ||
(b) When the judgment of the court becomes final, the court | ||
shall proceed under this subsection. If the person paid the amount | ||
of the penalty and if that amount is reduced or is not upheld by the | ||
court, the court shall order that the appropriate amount plus | ||
accrued interest be remitted to the person. The rate of the | ||
interest is the rate charged on loans to depository institutions by | ||
the New York Federal Reserve Bank, and the interest shall be paid | ||
for the period beginning on the date the penalty was paid and ending | ||
on the date the penalty is remitted. | ||
Sec. 51.0385. DEPOSIT OF PENALTY. A penalty collected | ||
under this section shall be remitted to the comptroller for deposit | ||
in the general revenue fund. | ||
Sec. 51.039. INJUNCTION: ATTORNEY GENERAL'S ACTION. The | ||
attorney general may seek injunctive relief in district court | ||
against an employer who repeatedly violates the requirements | ||
established by this chapter relating to the employment of children. | ||
SECTION 3. Section 301.0015, Labor Code, is amended to read | ||
as follows: | ||
Sec. 301.0015. GUIDELINES REGARDING FUNCTIONS OF | ||
COMMISSION AND STAFF. (a) In administering its functions under | ||
this title or another law, the commission shall limit its | ||
activities to: | ||
(1) setting commission policies, including policies | ||
that clearly separate the policymaking responsibilities of the | ||
commission and the management responsibilities of the executive | ||
director and commission staff; | ||
(2) giving general direction to the executive director | ||
regarding the implementation of the commission's policies, and | ||
holding the executive director accountable for implementing the | ||
policies; | ||
(3) approving the commission's budget recommendation | ||
to the legislature; | ||
(4) reviewing under Subchapter D, Chapter 212, the | ||
decision of an appeal tribunal regarding unemployment | ||
compensation; | ||
(5) reviewing under Subchapter D, Chapter 61, the | ||
decision of a wage claim appeal tribunal regarding a wage claim; | ||
(6) adopting rules necessary to administer the | ||
commission's policies, including rules necessary for the | ||
administration of this title and rules governing required reports, | ||
procedures, and orders; | ||
(7) responding to questions and comments that are | ||
directed to the commission by the executive director and that | ||
relate to setting or clarifying commission policies or relate to | ||
other matters of general interest to the commission; [ |
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(8) requesting information from commission staff; and | ||
(9) reviewing under Subchapter D, Chapter 51, the | ||
decision of a child labor appeal tribunal regarding a child labor | ||
violation and/or an administrative penalty. | ||
(b) Except as provided by Subsection (c), the commission may | ||
conduct the activities listed in Subsection (a) only when acting as | ||
a governmental body. | ||
(c) The commission, acting as a governmental body, or an | ||
individual member of the commission may conduct the activities | ||
listed in Subsections (a)(7) and (8). | ||
(d) In administering its functions under this title or | ||
another law, the commission, acting as a governmental body, or an | ||
individual member of the commission may not: | ||
(1) direct the day-to-day operations of the executive | ||
director or other commission staff; or | ||
(2) establish the details for the implementation of | ||
commission policies or direct the executive director or other | ||
commission staff about those details. | ||
SECTION 4. Section 301.006, Labor Code, is amended to read | ||
as follows: | ||
Sec. 301.006. CHAIR. (a) The governor shall designate the | ||
chair of the commission from among the members of the commission. | ||
The chair shall serve in that capacity at the pleasure of the | ||
governor for a two-year term. The governor may redesignate the same | ||
member to serve consecutive terms. | ||
(b) Notwithstanding Subsection (a), the member of the | ||
commission who represents the public shall serve as chair: | ||
(1) when the commission acts under: | ||
(A) Chapter 21; | ||
(B) Subchapter D, Chapter 61; | ||
(C) Subchapter D, Chapter 212; [ |
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(D) Chapter 301, Property Code; or | ||
(E) Subchapter D, Chapter 51; and | ||
(2) in commission hearings involving unemployment | ||
insurance issues regarding tax coverage, contributions, or | ||
reimbursements. | ||
SECTION 5. The change in law made by this Act applies only | ||
to a preliminary determination order issued on or after the | ||
effective date of this Act. A preliminary determination order | ||
issued before that date is governed by the law in effect on the date | ||
that the preliminary determination order was issued, and the former | ||
law is continued in effect for that purpose. | ||
SECTION 6. This Act takes effect September 1, 2023. | ||
______________________________ | ______________________________ | |
President of the Senate | Speaker of the House | |
I certify that H.B. No. 2459 was passed by the House on April | ||
26, 2023, by the following vote: Yeas 128, Nays 19, 1 present, not | ||
voting. | ||
______________________________ | ||
Chief Clerk of the House | ||
I certify that H.B. No. 2459 was passed by the Senate on May | ||
17, 2023, by the following vote: Yeas 31, Nays 0. | ||
______________________________ | ||
Secretary of the Senate | ||
APPROVED: _____________________ | ||
Date | ||
_____________________ | ||
Governor |