H.B. No. 2459
AN ACT
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repealed.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; [and]
(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; [or]
(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