1-1  By:  Cain, Berlanga (Senate Sponsor - Parker)         H.B. No. 1479
    1-2        (In the Senate - Received from the House May 12, 1993;
    1-3  May 13, 1993, read first time and referred to Committee on Health
    1-4  and Human Services; May 21, 1993, reported adversely, with
    1-5  favorable Committee Substitute by the following vote:  Yeas 9, Nays
    1-6  0; May 21, 1993, sent to printer.)
    1-7                            COMMITTEE VOTE
    1-8                          Yea     Nay      PNV      Absent 
    1-9        Zaffirini          x                               
   1-10        Ellis              x                               
   1-11        Madla              x                               
   1-12        Moncrief           x                               
   1-13        Nelson             x                               
   1-14        Patterson          x                               
   1-15        Shelley            x                               
   1-16        Truan              x                               
   1-17        Wentworth          x                               
   1-18  COMMITTEE SUBSTITUTE FOR H.B. No. 1479                  By:  Nelson
   1-19                         A BILL TO BE ENTITLED
   1-20                                AN ACT
   1-21  relating to the regulation of optometry and to the continuation and
   1-22  functions of the Texas Optometry Board; providing penalties.
   1-23        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
   1-24        SECTION 1.  Section 1.02, Texas Optometry Act (Article
   1-25  4552-1.02, Vernon's Texas Civil Statutes), is amended by amending
   1-26  Subdivisions (1), (2), (6), and (7) and adding Subdivisions (9) and
   1-27  (10) to read as follows:
   1-28              (1)  The "practice of optometry" is defined to be the
   1-29  employment of objective or subjective means, with or without the
   1-30  use of topical ocular pharmaceutical agents, for the purpose of
   1-31  ascertaining and measuring the powers of vision of the human eye,
   1-32  examining and diagnosing visual defects, abnormal conditions, and
   1-33  diseases of the human eye and adnexa, and prescribing or fitting
   1-34  lenses or prisms to correct or remedy any defect or abnormal
   1-35  condition of vision.  Nothing herein shall be construed to permit
   1-36  optometrists to treat the eyes for any defect whatsoever in any
   1-37  manner nor to administer nor to prescribe any drug or physical
   1-38  treatment whatsoever, unless such optometrist is a regularly
   1-39  licensed physician, <or> surgeon, or therapeutic optometrist under
   1-40  the laws of this state.  <Nothing herein shall be construed to
   1-41  prevent selling ready-to-wear spectacles or eyeglasses as
   1-42  merchandise at retail, nor to prevent simple repair jobs.>
   1-43              (2)  "Ascertaining and measuring the powers of vision
   1-44  of the human eye" shall be construed to include:
   1-45                    (A)  The examination of the eye to diagnose
   1-46  <ascertain> the presence of defects or abnormal conditions which
   1-47  may be corrected, remedied, or relieved, or the effects of which
   1-48  may be corrected, remedied, or relieved by the use of lenses or
   1-49  prisms, or
   1-50                    (B)  The employment of any objective or
   1-51  subjective means to determine the accommodative or refractive
   1-52  condition or the range or powers of vision or <of> muscular
   1-53  equilibrium of the human eye, or
   1-54                    (C)  The employment of any objective or
   1-55  subjective means for the examination of the human vision system for
   1-56  the purpose of ascertaining any departure from the normal,
   1-57  measuring its power of vision or adapting lenses or prisms for the
   1-58  aid or relief thereof, and it shall be construed as a violation of
   1-59  this Act, for any person not a licensed optometrist, therapeutic
   1-60  optometrist, or physician to do any one act or thing, or any
   1-61  combination of acts or things, named or described in this
   1-62  subdivision; provided, that nothing herein shall be construed to
   1-63  permit optometrists to treat the eye for any defect whatsoever in
   1-64  any manner, nor to administer any drug or physical treatment
   1-65  whatsoever, unless said optometrist is a therapeutic optometrist or
   1-66  a duly licensed physician and surgeon, under the laws of this
   1-67  state.
   1-68              (6)  A <Nothing in this Act shall be construed as
    2-1  preventing a> licensed optometrist or therapeutic optometrist may
    2-2  perform <from performing> vision therapy, hand-eye coordination
    2-3  exercises, visual training, and developmental vision therapy and
    2-4  may evaluate and remediate<, or from the evaluation and remediation
    2-5  of> learning or behavioral disabilities associated with or caused
    2-6  by <a> defective or abnormal conditions <condition> of vision.
    2-7              (7)  The "practice of therapeutic optometry" means the
    2-8  employment of objective or subjective means for the purpose of
    2-9  ascertaining and measuring the powers of vision of the human eye,
   2-10  examining and diagnosing visual defects, abnormal conditions, and
   2-11  diseases of the human eye and adnexa, prescribing or fitting lenses
   2-12  or prisms to correct or remedy a defect or abnormal condition of
   2-13  vision, administering or prescribing a drug or physical treatment
   2-14  in the manner authorized by this Act, and treating the eye and
   2-15  adnexa as authorized by this Act without the use of surgery or
   2-16  laser surgery.
   2-17              (9)  "Optometrist" means a person licensed under this
   2-18  Act and authorized to engage in the practice of optometry.
   2-19              (10)  "Therapeutic optometrist" means a person licensed
   2-20  under this Act and authorized to engage in the practice of
   2-21  therapeutic optometry.
   2-22        SECTION 2.  Sections 2.01 and 2.01a, Texas Optometry Act
   2-23  (Articles 4552-2.01 and 4552-2.01a, Vernon's Texas Civil Statutes),
   2-24  are amended to read as follows:
   2-25        Sec. 2.01.  Board created.  The Texas Optometry Board is
   2-26  created.  The board is composed of nine members appointed by the
   2-27  governor with the advice and consent of the Senate.  Appointments
   2-28  to the board shall be made without regard to the race, color,
   2-29  disability <creed>, sex, age, religion, or national origin of the
   2-30  appointees.
   2-31        Sec. 2.01a.  Sunset Provision.  The Texas Optometry Board is
   2-32  subject to Chapter 325, Government Code (Texas Sunset Act).  Unless
   2-33  continued in existence as provided by that chapter, the board is
   2-34  abolished and this Act expires September 1, 2005 <1993>.
   2-35        SECTION 3.  Section 2.02, Texas Optometry Act (Article
   2-36  4552-2.02, Vernon's Texas Civil Statutes), is amended by amending
   2-37  Subsections (b), (d), and (i) and adding Subsection (j) to read as
   2-38  follows:
   2-39        (b)  Three members must be representatives of the general
   2-40  public.  A person is not eligible for appointment as a public
   2-41  member of the board if the person or the person's spouse:
   2-42              (1)  is registered, certified, or licensed by an
   2-43  occupational regulatory agency in the field of health care;
   2-44              (2)  is employed by or participates in the management
   2-45  of or is an officer or paid consultant of a business entity or
   2-46  other organization that provides health-care services or that
   2-47  sells, manufactures, or distributes health-care supplies or
   2-48  equipment; <or>
   2-49              (3)  owns, controls, or has, directly or indirectly, a
   2-50  financial interest in a business entity or other organization that
   2-51  provides health-care services or that sells, manufactures, or
   2-52  distributes health-care supplies or equipment; or
   2-53              (4)  uses or receives a substantial amount of tangible
   2-54  goods, services, or funds from the board, other than compensation
   2-55  or reimbursement authorized by law for board membership,
   2-56  attendance, or expenses.
   2-57        (d)  A person <who is required to register as a lobbyist
   2-58  under Chapter 305, Government Code,> may not serve as a member of
   2-59  the board or act as the general counsel to the board if the person
   2-60  is required to register as a lobbyist under Chapter 305, Government
   2-61  Code, because of the person's activities for compensation on behalf
   2-62  of a profession related to the operation of the board.
   2-63        (i)  A <No> person may not serve more than two complete terms
   2-64  <a total of 12 years> on the board.  Time served on the board prior
   2-65  to September 1, 1981, shall not count toward this limitation.
   2-66        (j)  Each board member shall comply with the board member
   2-67  training requirements established by any other state agency that is
   2-68  given authority to establish the requirements for the board.
   2-69        (k)  The board shall establish a training program for the
   2-70  members of the board.
    3-1              (1)  Before a member of a board may assume the member's
    3-2  duties and before the member may be confirmed by the Senate, the
    3-3  member must complete at least one course of the training program
    3-4  established under this section.
    3-5              (2)  A training program established under this section
    3-6  shall provide information to a participant regarding:
    3-7                    (A)  the enabling legislation that created the
    3-8  board to which the member is appointed;
    3-9                    (B)  the programs operated by the agency;
   3-10                    (C)  the role and functions of the agency:
   3-11                    (D)  the rules of the agency with an emphasis on
   3-12  the rules that relate to disciplinary and investigatory authority;
   3-13                    (E)  the current budget for the agency;
   3-14                    (F)  the results of the most recent formal audit
   3-15  of the agency;
   3-16                    (G)  the requirements of the:
   3-17                          (i)  open meetings law, Chapter 271, Acts
   3-18  of the 60th Legislature, Regular Session, 1967 (Article 6252-17,
   3-19  Vernon's Texas Civil Statutes), and its subsequent amendments;
   3-20                          (ii)  open records law, Chapter 424, Acts
   3-21  of the 63rd Legislature, Regular Session, 1973 (Article 6252-17a,
   3-22  Vernon's Texas Civil Statutes), and its subsequent amendments; and
   3-23                    (iii)  Administrative Procedure and Texas
   3-24  Register Act (Article 6252-13a, Vernon's Texas Civil Statutes) and
   3-25  its subsequent amendments;
   3-26                    (H)  the requirements of the conflict of interest
   3-27  laws and other laws relating to public officials; and
   3-28                    (I)  any applicable ethics policies adopted by
   3-29  that state agency or the Texas Ethics Commission.
   3-30              (3)  In developing the training requirements provided
   3-31  for in this section, the board shall consult with the governor's
   3-32  office, the attorney general's office, and the ethics commission.
   3-33              (4)  In the event that another state agency or entity
   3-34  is given the authority to establish the training requirements, the
   3-35  board shall allow that training in lieu of developing its own
   3-36  program.
   3-37        SECTION 4.  Sections 2.06(a), (b), (c), and (f), Texas
   3-38  Optometry Act (Article 4552-2.06, Vernon's Texas Civil Statutes),
   3-39  are amended to read as follows:
   3-40        (a)  The board shall preserve a record of its proceedings <in
   3-41  a book kept for that purpose>.
   3-42        (b)  A record shall be kept showing the name, age, and
   3-43  present legal and mailing address of each applicant for
   3-44  examination, the name and location of the school of optometry from
   3-45  which the applicant <he> holds credentials, and the time devoted to
   3-46  the study and practice of optometry, together with such information
   3-47  as the board may desire to record.  Said record shall also show
   3-48  whether applicants were rejected or licensed and shall be prima
   3-49  facie evidence of all matters therein contained.  The executive
   3-50  director <secretary of the board> shall on or before September
   3-51  <March> 1 of each year send a certified copy of said record to the
   3-52  secretary of state for permanent record.  A certified copy of said
   3-53  record with the hand and seal of the executive director <secretary
   3-54  of said board> to the secretary of state, shall be admitted as
   3-55  evidence in all courts.
   3-56        (c)  Every license and annual renewal certificate issued
   3-57  shall be numbered and recorded <in a book kept> by the executive
   3-58  director <secretary of the board>.
   3-59        (f)  The board shall maintain <an information file about
   3-60  each> complaint files in accordance with Section 4.06 of this Act
   3-61  <filed with the board relating to a licensee.  If a written
   3-62  complaint is filed with the board relating to a licensee, the
   3-63  board, at least as frequently as quarterly and until final
   3-64  disposition of the complaint, shall notify the parties to the
   3-65  complaint of the status of the complaint unless the notification
   3-66  would jeopardize an undercover investigation>.
   3-67        SECTION 5.  Section 2.08, Texas Optometry Act (Article
   3-68  4552-2.08, Vernon's Texas Civil Statutes), is amended by amending
   3-69  Subsections (b) and (c) and adding Subsections (d), (e), (f), and
   3-70  (g) to read as follows:
    4-1        (b)  The executive director <of the board> or the executive
    4-2  director's <his> designee shall develop an intra-agency
    4-3  <intraagency> career ladder program.  The program shall require
    4-4  intra-agency<, one part of which shall be the intraagency> posting
    4-5  of all nonentry level positions concurrently with <for at least 10
    4-6  days before> any public posting.
    4-7        (c)  The executive director <of the board> or the executive
    4-8  director's <his> designee shall develop a system of annual
    4-9  performance evaluations based on measurable job tasks.  All merit
   4-10  pay for board employees must be based on the system established
   4-11  under this subsection.
   4-12        (d)  The executive director or the executive director's
   4-13  designee shall prepare and maintain a written policy statement to
   4-14  ensure implementation of a program of equal opportunity under which
   4-15  all personnel transactions are made without regard to race, color,
   4-16  disability, sex, religion, age, or national origin.  The policy
   4-17  statement must include:
   4-18              (1)  personnel policies, including policies relating to
   4-19  recruitment, evaluation, selection, appointment, training, and
   4-20  promotion of personnel, that are in compliance with requirements of
   4-21  the Commission on Human Rights Act (Article 5221k, Vernon's Texas
   4-22  Civil Statutes) and its subsequent amendments;
   4-23              (2)  a comprehensive analysis of the board work force
   4-24  that meets federal and state guidelines;
   4-25              (3)  procedures by which a determination can be made of
   4-26  significant underuse in the board work force of all persons for
   4-27  whom federal or state guidelines encourage a more equitable
   4-28  balance; and
   4-29              (4)  reasonable methods to appropriately address those
   4-30  areas of significant underuse.
   4-31        (e)  A policy statement prepared under Subsection (d) of this
   4-32  section must cover an annual period, be updated annually, be
   4-33  reviewed by the  Commission on Human Rights for compliance with
   4-34  Subsection (d)(1) of this section, and be filed with the governor's
   4-35  office.
   4-36        (f)  The governor's office shall deliver a biennial report to
   4-37  the legislature based on information received under Subsection (e)
   4-38  of this section.  The report may be made separately or as part of
   4-39  other biennial reports made to the legislature.
   4-40        (g)  The board shall develop and implement policies that
   4-41  clearly define the respective responsibilities of the board and the
   4-42  staff of the board.
   4-43        SECTION 6.  Sections 2.10 and 2.11, Texas Optometry Act
   4-44  (Articles 4552-2.10 and 4552-2.11, Vernon's Texas Civil Statutes),
   4-45  are amended to read as follows:
   4-46        Sec. 2.10.  Proceedings; subpoenas; oaths.  The board, any
   4-47  committee, or any member thereof, shall have the power to issue
   4-48  subpoenas and subpoenas duces tecum to compel the attendance of
   4-49  witnesses and the production of books, records and documents, to
   4-50  administer oaths and to take testimony concerning all matters
   4-51  within the <its or his> jurisdiction of the board, committee, or
   4-52  member.  The board shall not be bound by strict rules of procedure
   4-53  or by the laws of evidence in the conduct of its proceedings but
   4-54  the determination shall be founded upon sufficient legal evidence
   4-55  to sustain it.
   4-56        Sec. 2.11.  BOND OF EXECUTIVE DIRECTOR <SECRETARY-TREASURER>.
   4-57  Before entering upon the discharge of the duties of <his> office,
   4-58  the executive director <secretary-treasurer of the board> shall
   4-59  give such bond for the performance of the executive director's
   4-60  <his> duties as the board may require, the premium of which is to
   4-61  be paid from funds in the possession of the board.
   4-62        SECTION 7.  Sections 2.15(a), (b), and (d), Texas Optometry
   4-63  Act (Article 4552-2.15, Vernon's Texas Civil Statutes), are amended
   4-64  to read as follows:
   4-65        (a)  Except as provided by Subsection (b) of this section,
   4-66  the fund realized from all fees payable under this Act shall first
   4-67  be applied to the payment of all necessary expenses of the board,
   4-68  and the remainder shall be applied, by order of the board, to
   4-69  compensate members of the board.  Each member of the board is
   4-70  entitled to a per diem as set by legislative appropriation for each
    5-1  day that the member engages in the business of the board.  A member
    5-2  may be compensated <not receive any compensation> for actual travel
    5-3  expenses, including expenses for meals and lodging and<, other
    5-4  than> transportation expenses.  A member is entitled to
    5-5  compensation for transportation expenses as provided by the General
    5-6  Appropriations Act.  Each board member shall make out, under oath,
    5-7  a complete statement of the number of days engaged and the amount
    5-8  of the member's <his> expenses when presenting same for payment.
    5-9        (b)  The funds realized from annual renewal fees shall be
   5-10  distributed as follows:  15 percent <$10> of each renewal fee
   5-11  collected by the board under Section 3.03 of this Act shall be
   5-12  dedicated to the University of Houston Development Fund.  The
   5-13  license money placed in the development fund pursuant hereto shall
   5-14  be utilized solely for scholarships and improvements in the
   5-15  physical facilities, including library, of the College <School> of
   5-16  Optometry.
   5-17        The remainder of the fees attributable to annual renewal fees
   5-18  and all other fees payable under this Act shall be placed in the
   5-19  state treasury to the credit of a special fund to be known as the
   5-20  "Optometry Fund," and the comptroller shall upon requisition of the
   5-21  board from time to time draw warrants upon the state treasurer for
   5-22  the amounts specified in such requisition; provided, however, the
   5-23  fees from this optometry fund shall be expended as specified by
   5-24  itemized appropriation in the General Appropriations bill and shall
   5-25  be used by the Texas Optometry Board, and under its direction in
   5-26  carrying out its statutory duties.
   5-27        (d)  The <On or before January 1 of each year, the> board
   5-28  shall file annually with <make in writing to> the governor and the
   5-29  presiding officer of each house of the legislature a complete and
   5-30  detailed written <annual> report accounting for all funds received
   5-31  and disbursed by the board during the preceding fiscal year.  The
   5-32  annual report must be in the form and reported in the time provided
   5-33  by the General Appropriations Act.
   5-34        SECTION 8.  Article 2, Texas Optometry Act (Article 4552-2.01
   5-35  et seq., Vernon's Texas Civil Statutes), is amended by adding
   5-36  Sections 2.16, 2.17, 2.18, and 2.19 to read as follows:
   5-37        Sec. 2.16.  QUALIFICATIONS FOR OFFICE OR EMPLOYMENT.  The
   5-38  board shall provide to its members and employees, as often as
   5-39  necessary, information regarding their qualification for office or
   5-40  employment under this Act and their responsibilities under
   5-41  applicable law relating to standards of conduct for state officers
   5-42  or employees.
   5-43        Sec. 2.17.  PUBLIC INTEREST INFORMATION.  (a)  The board
   5-44  shall prepare information of public interest describing the
   5-45  functions of the board and the board's procedures by which
   5-46  complaints are filed with and resolved by the board.  The board
   5-47  shall make the information available to the public and appropriate
   5-48  state agencies.
   5-49        (b)  The board by rule shall establish methods by which
   5-50  consumers and service recipients are notified of the name, mailing
   5-51  address, and telephone number of the board for the purpose of
   5-52  directing complaints to the board.  The board may provide for that
   5-53  notification:
   5-54              (1)  on each registration form, application, or written
   5-55  contract for services of an individual or entity regulated under
   5-56  this Act;
   5-57              (2)  on a sign prominently displayed in the place of
   5-58  business of each individual or entity regulated under this Act; or
   5-59              (3)  in a bill for services provided by an individual
   5-60  or entity regulated under this Act.
   5-61        (c)  The board shall list along with its regular telephone
   5-62  number the toll-free telephone number that may be called to present
   5-63  a complaint about a health professional if the toll-free number is
   5-64  established under other state law.
   5-65        Sec. 2.18.  PUBLIC PARTICIPATION IN BOARD HEARINGS.  The
   5-66  board shall develop and implement policies that provide the public
   5-67  with a reasonable opportunity to appear before the board and to
   5-68  speak on any issue under the jurisdiction of the board.
   5-69        Sec. 2.19.  PROGRAM ACCESSIBILITY.  The board shall prepare
   5-70  and maintain a written plan that describes how a person who does
    6-1  not speak English can be provided reasonable access to the board's
    6-2  programs.  The board shall also comply with federal and state laws
    6-3  for program and facility accessibility.
    6-4        SECTION 9.  Section 3.01, Texas Optometry Act (Article
    6-5  4552-3.01, Vernon's Texas Civil Statutes), is amended to read as
    6-6  follows:
    6-7        Sec. 3.01.  Must pass examination.  Every person hereafter
    6-8  desiring to be licensed to practice therapeutic optometry in this
    6-9  state shall be required to pass the examination given by the Texas
   6-10  Optometry Board.  <However, the board may adopt substantive rules
   6-11  to authorize the waiver of this or other license requirements for
   6-12  an applicant with a valid license from another state having, at the
   6-13  time of the applicant's initial licensure in that state, license
   6-14  requirements and continuing education requirements substantially
   6-15  equivalent to those currently required in this state.> The
   6-16  examination must include examination in pharmacology and related
   6-17  pathology.
   6-18        SECTION 10.  Sections 3.02(a) and (b), Texas Optometry Act
   6-19  (Article 4552-3.02, Vernon's Texas Civil Statutes), are amended to
   6-20  read as follows:
   6-21        (a)  The applicant shall make application, furnishing to the
   6-22  executive director <secretary of the board>, on forms to be
   6-23  furnished by the board, satisfactory sworn evidence that the
   6-24  applicant <he> has attained the age of majority, is of good moral
   6-25  character, and has <at least graduated from a first grade high
   6-26  school, or has> a preliminary education equivalent to permit the
   6-27  applicant <him> to matriculate in The University of Texas, and that
   6-28  the applicant <he> has attended and graduated from a reputable
   6-29  <university or> college of optometry which meets with the
   6-30  requirements of the board, and such other information as the board
   6-31  may deem necessary for the enforcement of this Act.
   6-32        (b)  A college <university or school> of optometry is
   6-33  reputable whose entrance requirements and course of instruction are
   6-34  as high as those adopted by the better class of universities and
   6-35  schools of optometry and whose course of instruction shall be
   6-36  equivalent to not less than six terms of eight months each, and
   6-37  approved by the board.  Provided, however, that the provisions of
   6-38  this subsection shall only apply to those students enrolling in
   6-39  school from and after September 1, 1969 <the effective date of this
   6-40  Act>.
   6-41        SECTION 11.  Section 3.03, Texas Optometry Act (Article
   6-42  4552-3.03, Vernon's Texas Civil Statutes), is amended to read as
   6-43  follows:
   6-44        Sec. 3.03.  Fees.  (a)  The board shall establish reasonable
   6-45  and necessary fees so that the fees, in the aggregate, produce
   6-46  sufficient revenue to cover the cost of administering <for the
   6-47  administration of> this Act.  The fees established by the board
   6-48  under this section may include fees for examination,
   6-49  re-examination, issuance of a license, renewal of a license,
   6-50  issuance of a duplicate license, and other acts performed by or
   6-51  services provided by the board.  The board may not set a fee for an
   6-52  amount less than the amount of that fee on September 1, 1993.  The
   6-53  fees may be adjusted upward to reflect increased costs in the
   6-54  administration of this Act. <in amounts not to exceed:>
   6-55        <1.  Examination                                        $ 55>
   6-56        <2.  Re-examination                                       20>
   6-57        <3.  License                                              40>
   6-58        <4.  License renewal                                     135>
   6-59        <5.  Lost license                                         15>
   6-60  The board shall not maintain unnecessary fund balances, and fee
   6-61  amounts shall be set in accordance with this requirement.
   6-62        (b)  If anyone successfully passing the examination and
   6-63  meeting the requirements of the board has not paid the fee for
   6-64  issuance of a license within 90 days after having been notified by
   6-65  registered mail at the address given on the <his> examination
   6-66  papers, or at the time of the examination, that the person <he> is
   6-67  eligible for the license <same>, such person shall by the person's
   6-68  <his> own act have waived the <his> right to obtain the <his>
   6-69  license, and the board may at its discretion refuse to issue such
   6-70  license until such person has taken and successfully passed another
    7-1  examination.
    7-2        SECTION 12.  Section 3.03B, Texas Optometry Act (Article
    7-3  4552-3.03B, Vernon's Texas Civil Statutes), is amended by adding
    7-4  Subsections (c) and (d) to read as follows:
    7-5        (c)  The fee increase imposed by this section may not apply
    7-6  to a person who is not engaged in the practice of optometry or
    7-7  therapeutic optometry in this state at the time the fee is imposed.
    7-8        (d)  The fee increase imposed by this section may not be used
    7-9  to compute the amount dedicated to the University of Houston
   7-10  Development Fund under Section 2.15(b) of this Act.
   7-11        SECTION 13.  Sections 3.05 and 3.06, Texas Optometry Act
   7-12  (Articles 4552-3.05 and 4552-3.06, Vernon's Texas Civil Statutes),
   7-13  are amended to read as follows:
   7-14        Sec. 3.05.  Subjects of examination.  The examination shall
   7-15  consist of written, oral or practical tests, in practical,
   7-16  theoretical, and physiological optics, in theoretical and practical
   7-17  optometry, and in the anatomy, physiology and pathology of the eye
   7-18  as applied to optometry and in such other subjects as may be
   7-19  regularly taught in <all> recognized accredited colleges of
   7-20  optometry <standard optometric universities or schools>.
   7-21        Sec. 3.06.  Conduct of examination.  All examinations shall
   7-22  be conducted in writing and by such other means as the board shall
   7-23  determine adequate to ascertain the qualifications of applicants
   7-24  and in such manner as shall be entirely fair and impartial to all
   7-25  individuals and every recognized school of optometry.   If the
   7-26  written portion of the examination is not prepared by a national
   7-27  testing organization, the board shall have the written portion
   7-28  validated by an independent testing professional.  All applicants
   7-29  examined at the same time shall be given the same written
   7-30  examination.  Within 30 days after the date a licensing examination
   7-31  is administered under this Act, the board shall notify each
   7-32  examinee of the results of the examination.  However, if an
   7-33  examination is graded or reviewed by a national testing service,
   7-34  the board shall notify each examinee of the results of the
   7-35  examination within two weeks after the date the board receives the
   7-36  results from the testing service.  If the notice of the examination
   7-37  results will be delayed for more than 90 days after the examination
   7-38  date, the board shall notify each examinee of the reason for the
   7-39  delay before the 90th day.  If requested in writing by a person who
   7-40  fails the licensing examination administered under this Act, the
   7-41  board shall furnish the person with an analysis of the person's
   7-42  performance on the examination.
   7-43        SECTION 14.  Article 3, Texas Optometry Act (Article
   7-44  4552-3.01 et seq., Vernon's Texas Civil Statutes), is amended by
   7-45  adding Sections 3.08, 3.09, and 3.10 to read as follows:
   7-46        Sec. 3.08.  PROVISIONAL LICENSE FOR PERSON LICENSED IN
   7-47  ANOTHER STATE.  (a)  On application, the board shall grant a
   7-48  provisional license to practice optometry or therapeutic optometry.
   7-49  An applicant for a provisional license under this section must:
   7-50              (1)  be licensed in good standing as an optometrist or
   7-51  therapeutic optometrist in another state, the District of Columbia,
   7-52  or a territory of the United States that has licensing requirements
   7-53  that are substantially equivalent to the requirements of this Act;
   7-54              (2)  have passed a national or other examination
   7-55  recognized by the board relating to the practice of optometry or
   7-56  therapeutic optometry; and
   7-57              (3)  be sponsored by a person licensed by the board
   7-58  under this Act with whom the provisional license holder may
   7-59  practice under this section.
   7-60        (b)  An applicant for a provisional license may be excused
   7-61  from the requirement of Subsection (a)(3) of this section if the
   7-62  board determines that compliance with that subdivision constitutes
   7-63  a hardship to the applicant.
   7-64        (c)  A provisional license is valid until the date the board
   7-65  approves or denies the provisional license holder's application for
   7-66  a license.  The board shall issue a license under this Act to the
   7-67  holder of a provisional license under this section if:
   7-68              (1)  the provisional license holder passes the
   7-69  examination required by Section 3.01 of this Act;
   7-70              (2)  the board verifies that the provisional license
    8-1  holder has the academic and experience requirements for a license
    8-2  under this Act; and
    8-3              (3)  the provisional license holder satisfies any other
    8-4  license requirements under this Act.
    8-5        (d)  The board must complete the processing of a provisional
    8-6  license holder's application for a license not later than the 180th
    8-7  day after the date the provisional license is issued.  The board
    8-8  may extend this time as necessary to receive the results of an
    8-9  examination administered or graded by a testing organization.
   8-10        Sec. 3.09.  LIMITED LICENSE FOR CLINICAL FACULTY.   (a)  The
   8-11  board by rule may provide for the issuance of a limited license to
   8-12  a full-time clinical faculty member of an institution of higher
   8-13  education of this state who provides instruction in optometry or
   8-14  therapeutic optometry.
   8-15        (b)  A license under this section may authorize the faculty
   8-16  member to practice optometry or therapeutic optometry only on the
   8-17  premises of the institution of higher education and its affiliated
   8-18  teaching clinics and only as part of the institution's teaching
   8-19  program.
   8-20        (c)  The board by rule may adopt criteria and fees for
   8-21  issuance and renewal of a license under this section.
   8-22        Sec. 3.10.  INACTIVE STATUS.  The board by rule may provide
   8-23  for a person who holds a license under this Act to be placed on
   8-24  inactive status.
   8-25        SECTION 15.  Section 4.01, Texas Optometry Act (Article
   8-26  4552-4.01, Vernon's Texas Civil Statutes), is amended to read as
   8-27  follows:
   8-28        Sec. 4.01.  Annual renewal.  (a)  On or before January 1 of
   8-29  each year, every licensed optometrist and therapeutic optometrist
   8-30  in this state shall pay to <the secretary-treasurer of> the board
   8-31  an annual renewal fee for the renewal of a <his> license to
   8-32  practice optometry or therapeutic optometry for the current year.
   8-33  The amount of the fee shall be as determined by the board.  A
   8-34  person may renew an unexpired license by paying to the board before
   8-35  the expiration date of the license the required renewal fee.
   8-36        (b)  If a person's license has been expired for 90 <not more
   8-37  than 180> days or less, the person may renew the license by paying
   8-38  to the board the required renewal fee and a fee that is one-half of
   8-39  the examination fee for the license.
   8-40        (c)  If a person's license has been expired for longer than
   8-41  90 <more than 180> days but less than one year <three years>, the
   8-42  person may renew the license by paying to the board all unpaid
   8-43  renewal fees and a fee that is equal to the examination fee for the
   8-44  license.
   8-45        (d)  If a person's license has been expired for one year or
   8-46  longer <three years or more>, the person may not renew the license.
   8-47  The person may obtain a new license by submitting to reexamination
   8-48  and complying with the requirements and procedures for obtaining an
   8-49  original license.  However, the board may renew without examination
   8-50  an expired license of a person who was licensed in this state,
   8-51  moved to another state, and is currently licensed and has been in
   8-52  practice in the other state for the two years preceding
   8-53  application.  The person must pay to the board a fee that is equal
   8-54  to the examination fee for the license.
   8-55        (e)  At least 30 days before the expiration of a person's
   8-56  license, the board shall send written notice of the impending
   8-57  license expiration to the person at the person's last known address
   8-58  according to the records of the board.
   8-59        (f) <(b)>  On receipt of the required fees, the board shall
   8-60  issue an annual renewal certificate bearing the number of the
   8-61  license, the year for which renewed, and such other information
   8-62  from the records of the board as said board may deem necessary for
   8-63  the proper enforcement of this Act.
   8-64        (g) <(c)  When the person's license has been expired for
   8-65  three years, the board shall notify the county clerk of the county
   8-66  in which such license may have been recorded of the cancellation,
   8-67  and such clerk, upon receipt of such notice from said board, shall
   8-68  enter upon the optometry register of such county the fact that such
   8-69  license has been cancelled for nonpayment of annual renewal fee and
   8-70  shall notify the board in writing that such entry has been made.>
    9-1        <(d)>  Practicing optometry or therapeutic optometry without
    9-2  an annual renewal certificate for the current year as provided
    9-3  herein, shall have the same force and effect and be subject to all
    9-4  penalties of practicing optometry or therapeutic optometry without
    9-5  a license.
    9-6        SECTION 16.  Section 4.01B, Texas Optometry Act (Article
    9-7  4552-4.01B, Vernon's Texas Civil Statutes), is amended by amending
    9-8  Subsections (b), (c), and (e) and adding Subsections (f) and (g) to
    9-9  read as follows:
   9-10        (b)  The length of study required is 16 <12> hours per
   9-11  calendar year.  At least six hours of study per calendar year must
   9-12  be in the diagnosis or treatment of ocular disease.
   9-13        (c)  The continuing education requirements established by
   9-14  this section shall be fulfilled by attendance in continuing
   9-15  education courses sponsored by an accredited college of optometry
   9-16  or in a course approved by the board.  Attendance at a course of
   9-17  study shall be certified to the board on a form approved <provided>
   9-18  by the board and shall be submitted by each licensed optometrist
   9-19  and therapeutic optometrist in conjunction with the <his>
   9-20  application for renewal of the <his> license and submission of
   9-21  renewal fee.
   9-22        (e)  The <Licensees who have not complied with the
   9-23  requirement of this section may not be issued a renewal license,
   9-24  except for the> following persons <who> are exempt from the
   9-25  requirements of this section:
   9-26              (1)  a person who holds a Texas license but who does
   9-27  not practice optometry or therapeutic optometry in Texas;
   9-28              (2)  a licensee who served in the regular armed forces
   9-29  of the United States during part of the 12 months immediately
   9-30  preceding the annual license renewal date;
   9-31              (3)  a licensee who submits proof that the licensee
   9-32  <he> suffered a serious or disabling illness or physical disability
   9-33  which prevented the licensee <him> from complying with the
   9-34  requirements of this section during the 12 months immediately
   9-35  preceding the annual license renewal date; or
   9-36              (4)  a licensee first licensed within the 12 months
   9-37  immediately preceding the annual renewal date.
   9-38        (f)  The board may not issue a renewal license to a licensee
   9-39  who has not complied with the requirements of this section unless
   9-40  the licensee:
   9-41              (1)  provides the board with evidence acceptable to the
   9-42  board that the licensee has, since the expiration of the license,
   9-43  completed sufficient hours of approved continuing education courses
   9-44  to satisfy any deficiency in the previous year; and
   9-45              (2)  pays to the board the license renewal fee plus a
   9-46  penalty in an amount equal to the amount of the license renewal
   9-47  fee.
   9-48        (g)  Continuing education hours used by a licensee to satisfy
   9-49  a deficiency for a previous year under Subsection (f)(1) of this
   9-50  section may not be used to satisfy the requirements for the year in
   9-51  which they are earned.
   9-52        SECTION 17.  Sections 4.02 and 4.03, Texas Optometry Act
   9-53  (Articles 4552-4.02 and 4552-4.03, Vernon's Texas Civil Statutes),
   9-54  are amended to read as follows:
   9-55        Sec. 4.02.  Renewal after discharge from military.  Any
   9-56  licensed optometrist or therapeutic optometrist whose renewal
   9-57  certificate has expired while the licensee <he> has been engaged in
   9-58  active duty with any United States military service or with the
   9-59  United States Public Health Service, engaged in full-time federal
   9-60  service, or engaged in training or education under the supervision
   9-61  of the United States, preliminary to induction into the military
   9-62  service, may have the <his> renewal certificate reinstated without
   9-63  paying any lapsed renewal fee or registration fee, or without
   9-64  passing an examination, if within one year after termination of
   9-65  said service, training or education, other than by dishonorable
   9-66  discharge, the licensee <he> furnishes the board with affidavit to
   9-67  the effect that the licensee <he> has been so engaged and that the
   9-68  <his> service, training or education has been so terminated.
   9-69        Sec. 4.03.  Lost or destroyed license.  If any license issued
   9-70  under this law shall be lost or destroyed, the holder of said
   10-1  license shall make an affidavit of its loss or destruction, and
   10-2  that the person making the affidavit <he> is the same person to
   10-3  whom such license was issued, and such other information as may be
   10-4  desired by the board, and shall, upon payment of a fee set in
   10-5  accordance with Section 3.03 of this Act, <of $10> be granted a
   10-6  license under this law.
   10-7        SECTION 18.  Section 4.04, Texas Optometry Act (Article
   10-8  4552-4.04, Vernon's Texas Civil Statutes), is amended by amending
   10-9  Subsections (a), (b), and (e) and adding Subsection (g) to read as
  10-10  follows:
  10-11        (a)  By five or more votes, the board may refuse to issue a
  10-12  license to an applicant, revoke or suspend a license, place on
  10-13  probation a person whose license has been suspended, impose a fine,
  10-14  impose a stipulation, limitation, or condition relating to
  10-15  continued practice, including conditioning continued practice on
  10-16  counseling or additional education <probate a license suspension>,
  10-17  or reprimand a licensee if it finds that:
  10-18              (1)  the applicant or licensee is guilty of any fraud,
  10-19  deceit, dishonesty, or misrepresentation in the practice of
  10-20  optometry or therapeutic optometry or in <his> seeking admission to
  10-21  such practice;
  10-22              (2)  the applicant or licensee is unfit or incompetent
  10-23  by reason of negligence;
  10-24              (3)  the applicant or licensee has been convicted of a
  10-25  felony or a misdemeanor which involves moral turpitude;
  10-26              (4)  the applicant or licensee is an habitual drunkard
  10-27  or is addicted to the use of morphine, cocaine or other drugs
  10-28  having similar effect or has become insane or has been adjudged by
  10-29  a court of competent jurisdiction to be of unsound mind;
  10-30              (5)  the licensee has directly or indirectly employed,
  10-31  hired, procured, or induced a person, not licensed to practice
  10-32  optometry or therapeutic optometry in this state, to so practice;
  10-33              (6)  the licensee directly or indirectly aids or abets
  10-34  in the practice of optometry or therapeutic optometry any person
  10-35  not duly licensed to practice under this Act;
  10-36              (7)  the licensee lends, leases, rents or in any other
  10-37  manner places the <his> license at the disposal or in the service
  10-38  of any person not licensed to practice optometry or therapeutic
  10-39  optometry in this state;
  10-40              (8)  the applicant or licensee has willfully or
  10-41  repeatedly violated any of the provisions of this Act or a lawful
  10-42  rule of the board;
  10-43              (9)  the licensee has willfully or repeatedly
  10-44  represented to the public or any member thereof that the licensee
  10-45  <he> is authorized or competent to cure or treat diseases of the
  10-46  eye beyond the authorization granted in this Act; <or>
  10-47              (10)  the licensee has the <his> right to practice
  10-48  optometry or therapeutic optometry suspended or revoked by any
  10-49  federal agency for a cause which in the opinion of the board
  10-50  warrants such action;
  10-51              (11)  the applicant or licensee has engaged in conduct
  10-52  to deceive, defraud, or harm the public;
  10-53              (12)  the applicant or licensee is found by the board
  10-54  to be guilty of gross incompetence in the practice of optometry or
  10-55  therapeutic optometry;
  10-56              (13)  the applicant or licensee is found by the board
  10-57  to have engaged in a pattern of practice or other behavior that
  10-58  demonstrates a willful rendering of substandard care;
  10-59              (14)  the applicant or licensee commits an act of
  10-60  sexual abuse, misconduct, or exploitation with a patient or
  10-61  otherwise unethically or immorally abuses the doctor-patient
  10-62  relationship;
  10-63              (15)  the applicant or licensee prescribes, sells,
  10-64  administers, distributes, or gives any drug legally classified as a
  10-65  controlled substance or as an addictive or dangerous drug for other
  10-66  than accepted diagnostic or therapeutic purposes;
  10-67              (16)  the applicant or licensee fails to report to the
  10-68  board the relocation of the applicant's or licensee's office not
  10-69  later than the 30th day after the relocation, whether in or out of
  10-70  this state; or
   11-1              (17)  the licensee practices or attempts to practice
   11-2  optometry while the licensee's license is under suspension.
   11-3        (b)  Any person may begin proceedings under this section by
   11-4  filing charges with the board in writing and under oath.  If
   11-5  charges are filed against a person or if the board proposes to
   11-6  refuse a person's application for a license or to suspend or revoke
   11-7  a person's license, the person is entitled to a hearing.  The State
   11-8  Office of Administrative Hearings shall conduct the hearing <before
   11-9  the board>.  Except as provided by Subsection (c) of this section,
  11-10  proceedings are governed by the Administrative Procedure and Texas
  11-11  Register Act<, as amended> (Article 6252-13a, Vernon's Texas Civil
  11-12  Statutes) and its subsequent amendments.
  11-13        (e)  Nothing in this Act shall be construed to prevent the
  11-14  administrator or executor of the estate of a deceased optometrist
  11-15  or therapeutic optometrist from employing a licensed optometrist or
  11-16  therapeutic optometrist to carry on the practice of such deceased
  11-17  during the administration of such estate nor to prevent a licensed
  11-18  optometrist or therapeutic optometrist from working for such person
  11-19  during the administration of the estate when the legal
  11-20  representative thereof has been authorized by the county judge to
  11-21  continue the operation of such practice.  Operation of a practice
  11-22  by an estate under this subsection must terminate before the first
  11-23  anniversary of the death of the optometrist or therapeutic
  11-24  optometrist.
  11-25        (g)  If a license suspension is probated, the board may
  11-26  require the licensee to:
  11-27              (1)  report regularly to the board on matters that are
  11-28  the basis of the probation;
  11-29              (2)  limit practice to the areas prescribed by the
  11-30  board; or
  11-31              (3)  continue or review professional education until
  11-32  the licensee attains a degree of skill satisfactory to the board in
  11-33  those areas that are the basis of the probation.
  11-34        SECTION 19.  Article 4, Texas Optometry Act (Article
  11-35  4552-4.01 et seq., Vernon's Texas Civil Statutes), is amended by
  11-36  adding Sections 4.05, 4.06, 4.07, 4.08, and 4.09 to read as
  11-37  follows:
  11-38        Sec. 4.05.  ADMINISTRATIVE PENALTIES.  (a)  The board may
  11-39  impose an administrative penalty against a person licensed or
  11-40  regulated under this Act who violates this Act or a rule or order
  11-41  adopted under this Act.
  11-42        (b)  The penalty for each violation may be in an amount not
  11-43  to exceed $2,500.  Each day a violation continues or occurs is a
  11-44  separate violation for purposes of imposing a penalty.
  11-45        (c)  The amount of the penalty shall be based on:
  11-46              (1)  the seriousness of the violation, including the
  11-47  nature, circumstances, extent, and gravity of any prohibited acts,
  11-48  and the hazard or potential hazard created to the health, safety,
  11-49  or economic welfare of the public;
  11-50              (2)  the economic harm to property or the environment
  11-51  caused by the violation;
  11-52              (3)  the history of previous violations;
  11-53              (4)  the amount necessary to deter future violations;
  11-54              (5)  efforts to correct the violation; and
  11-55              (6)  any other matter that justice may require.
  11-56        (d)  If the executive director or a subcommittee of the board
  11-57  appointed for that purpose determines that a violation has
  11-58  occurred, the executive director or subcommittee may issue to the
  11-59  board a report that states the facts on which the determination is
  11-60  based and the recommendation of the executive director or
  11-61  subcommittee on the imposition of a penalty, including a
  11-62  recommendation on the amount of the penalty.  A subcommittee of the
  11-63  board appointed under this subsection must include at least one
  11-64  public member of the board.
  11-65        (e)  Within 14 days after the date the report is issued, the
  11-66  executive director or subcommittee shall give written notice of the
  11-67  report to the person.  The notice may be given by certified mail.
  11-68  The notice must include a brief summary of the alleged violation
  11-69  and a statement of the amount of the recommended penalty and must
  11-70  inform the person that the person has a right to a hearing on the
   12-1  occurrence of the violation, the amount of the penalty, or both the
   12-2  occurrence of the violation and the amount of the penalty.
   12-3        (f)  Within 20 days after the date the person receives the
   12-4  notice, the person in writing may accept the determination and
   12-5  recommended penalty of the executive director or subcommittee, as
   12-6  applicable, or may make a written request for a hearing on the
   12-7  occurrence of the violation, the amount of the penalty, or both the
   12-8  occurrence of the violation and the amount of the penalty.
   12-9        (g)  If the person accepts the determination and recommended
  12-10  penalty of the executive director or subcommittee, as applicable,
  12-11  the board by order shall approve the determination and impose the
  12-12  recommended penalty.
  12-13        (h)  If the person requests a hearing or fails to respond
  12-14  timely to the notice, the executive director shall set a hearing
  12-15  and give notice of the hearing to the person.  The hearing shall be
  12-16  held by an administrative law judge of the State Office of
  12-17  Administrative Hearings.  The administrative law judge shall make
  12-18  findings of fact and conclusions of law.  The administrative law
  12-19  judge shall promptly issue to the board a proposal for a decision
  12-20  about the occurrence of the violation and the amount of a proposed
  12-21  penalty.  Based on the findings of fact, conclusions of law, and
  12-22  proposal for a decision, the board by order may find that a
  12-23  violation has occurred and impose a penalty or may find that no
  12-24  violation occurred.
  12-25        (i)  The notice of the board's order given to the person
  12-26  under the Administrative Procedure and Texas Register Act (Article
  12-27  6252-13a, Vernon's Texas Civil Statutes) and its subsequent
  12-28  amendments must include a statement of the right of the person to
  12-29  judicial review of the order.
  12-30        (j)  Within 30 days after the date the board's order is final
  12-31  as provided by Section 16(c), Administrative Procedure and Texas
  12-32  Register Act (Article 6252-13a, Vernon's Texas Civil Statutes), and
  12-33  its subsequent amendments, the person shall:
  12-34              (1)  pay the amount of the penalty;
  12-35              (2)  pay the amount of the penalty and file a petition
  12-36  for judicial review contesting the occurrence of the violation, the
  12-37  amount of the penalty, or both the occurrence of the violation and
  12-38  the amount of the penalty; or
  12-39              (3)  without paying the amount of the penalty, file a
  12-40  petition for judicial review contesting the occurrence of the
  12-41  violation, the amount of the penalty, or both the occurrence of the
  12-42  violation and the amount of the penalty.
  12-43        (k)  Within the 30-day period, a person who acts under
  12-44  Subsection (j)(3) of this section may:
  12-45              (1)  stay enforcement of the penalty by:
  12-46                    (A)  paying the amount of the penalty to the
  12-47  court for placement in an escrow account; or
  12-48                    (B)  giving to the court a supersedeas bond
  12-49  approved by the court for the amount of the penalty and that is
  12-50  effective until all judicial review of the board's order is final;
  12-51  or
  12-52              (2)  request the court to stay enforcement of the
  12-53  penalty by:
  12-54                    (A)  filing with the court a sworn affidavit of
  12-55  the person stating that the person is financially unable to pay the
  12-56  amount of the penalty and is financially unable to give the
  12-57  supersedeas bond; and
  12-58                    (B)  giving a copy of the affidavit to the
  12-59  executive director by certified mail.
  12-60        (l)  If the executive director receives a copy of an
  12-61  affidavit under Subsection (k)(2) of this section, the executive
  12-62  director may file with the court, within five days after the date
  12-63  the copy is received, a contest to the affidavit.  The court shall
  12-64  hold a hearing on the facts alleged in the affidavit as soon as
  12-65  practicable and shall stay the enforcement of the penalty on
  12-66  finding that the alleged facts are true.  The person who files an
  12-67  affidavit has the burden of proving that the person is financially
  12-68  unable to pay the amount of the penalty and to give a supersedeas
  12-69  bond.
  12-70        (m)  If the person does not pay the amount of the penalty and
   13-1  the enforcement of the penalty is not stayed, the executive
   13-2  director may refer the matter to the attorney general for
   13-3  collection of the amount of the penalty.
   13-4        (n)  Judicial review of the order of the board:
   13-5              (1)  is instituted by filing a petition as provided by
   13-6  Section 19, Administrative Procedure and Texas Register Act
   13-7  (Article 6252-13a, Vernon's Texas Civil Statutes), and its
   13-8  subsequent amendments; and
   13-9              (2)  is under the substantial evidence rule.
  13-10        (o)  If the court sustains the occurrence of the violation,
  13-11  the court may uphold or reduce the amount of the penalty and order
  13-12  the person to pay the full or reduced amount of the penalty.  If
  13-13  the court does not sustain the occurrence of the violation, the
  13-14  court shall order that no penalty is owed.
  13-15        (p)  When the judgment of the court becomes final, the court
  13-16  shall proceed under this subsection.  If the person paid the amount
  13-17  of the penalty and if that amount is reduced or is not upheld by
  13-18  the court, the court shall order that the appropriate amount plus
  13-19  accrued interest be remitted to the person.  The rate of the
  13-20  interest is the rate charged on loans to depository institutions by
  13-21  the New York Federal Reserve Bank, and the interest shall be paid
  13-22  for the period beginning on the date the penalty was paid and
  13-23  ending on the date the penalty is remitted.  If the person gave a
  13-24  supersedeas bond and if the amount of the penalty is not upheld by
  13-25  the court, the court shall order the release of the bond.  If the
  13-26  person gave a supersedeas bond and if the amount of the penalty is
  13-27  reduced, the court shall order the release of the bond after the
  13-28  person pays the amount.
  13-29        (q)  A penalty collected under this section shall be remitted
  13-30  to the comptroller for deposit in the general revenue fund.
  13-31        (r)  All proceedings under this section are subject to the
  13-32  Administrative Procedure and Texas Register Act (Article 6252-13a,
  13-33  Vernon's Texas Civil Statutes) and its subsequent amendments.
  13-34        Sec. 4.06.  COMPLAINT PROCEDURE IN GENERAL.  (a)  The board
  13-35  shall keep an information file about each complaint filed with the
  13-36  board.  The board's information file shall be kept current and
  13-37  contain a record for each complaint of:
  13-38              (1)  all persons contacted in relation to the
  13-39  complaint;
  13-40              (2)  a summary of findings made at each step of the
  13-41  complaint process;
  13-42              (3)  an explanation of the legal basis and reason for a
  13-43  complaint that is dismissed; and
  13-44              (4)  other relevant information.
  13-45        (b)  If a written complaint is filed with the board that the
  13-46  board has authority to resolve, the board, at least as frequently
  13-47  as quarterly and until final disposition of the complaint, shall
  13-48  notify the parties to the complaint of the status of the complaint
  13-49  unless the notice would jeopardize an undercover investigation.
  13-50        (c)  The board by rule shall adopt a form to standardize
  13-51  information concerning complaints made to the board.  The board by
  13-52  rule shall prescribe information to be provided to a person when
  13-53  the person files a complaint with the board.
  13-54        (d)  The board shall provide reasonable assistance to a
  13-55  person who wishes to file a complaint with the board.
  13-56        Sec. 4.07.  COMPLAINT INVESTIGATION AND DISPOSITION.
  13-57  (a)  The board shall adopt rules concerning the investigation of a
  13-58  complaint filed with the board.  The rules adopted under this
  13-59  subsection shall:
  13-60              (1)  distinguish between categories of complaints;
  13-61              (2)  ensure that complaints are not dismissed without
  13-62  appropriate consideration;
  13-63              (3)  require that the board be advised of a complaint
  13-64  that is dismissed and that a letter be sent to the person who filed
  13-65  the complaint explaining the action taken on the dismissed
  13-66  complaint;
  13-67              (4)  ensure that the person who filed the complaint has
  13-68  an opportunity to explain the allegations made in the complaint;
  13-69  and
  13-70              (5)  prescribe guidelines concerning the categories of
   14-1  complaints that require the use of a private investigator and the
   14-2  procedures for the board to obtain the services of a private
   14-3  investigator.
   14-4        (b)  The board shall dispose of all complaints in a timely
   14-5  manner.  The board shall establish a schedule for conducting each
   14-6  phase of a complaint that is under the control of the board not
   14-7  later than the 30th day after the date the complaint is received by
   14-8  the board.  The schedule shall be kept in the information file for
   14-9  the complaint and all parties shall be notified of the projected
  14-10  time requirements for pursuing the complaint.  A change in the
  14-11  schedule must be noted in the complaint information file and all
  14-12  parties to the complaint must be notified not later than the
  14-13  seventh day after the date the change is made.
  14-14        (c)  The executive director shall notify the board of a
  14-15  complaint that extends beyond the time prescribed by the board for
  14-16  resolving the complaint so that the board may take necessary action
  14-17  on the complaint.
  14-18        Sec. 4.08.  MONITORING OF LICENSE HOLDER.  The board by rule
  14-19  shall develop a system for monitoring license holders' compliance
  14-20  with the requirements of this Act.  Rules adopted under this
  14-21  section shall include procedures for monitoring a license holder
  14-22  who is ordered by the board to perform certain acts to ascertain
  14-23  that the license holder performs the required acts and to identify
  14-24  and monitor license holders who represent a risk to the public.
  14-25        Sec. 4.09.  INFORMAL PROCEEDINGS.  (a)  The board by rule
  14-26  shall adopt procedures governing:
  14-27              (1)  informal disposition of a contested case under
  14-28  Section 13(e), Administrative Procedure and Texas Register Act
  14-29  (Article 6252-13a, Vernon's Texas Civil Statutes), and its
  14-30  subsequent amendments; and
  14-31              (2)  informal proceedings held in compliance with
  14-32  Section 18(c), Administrative Procedure and Texas Register Act
  14-33  (Article 6252-13a, Vernon's Texas Civil Statutes), and its
  14-34  subsequent amendments.
  14-35        (b)  Rules adopted under this section must provide the
  14-36  complainant and the licensee an opportunity to be heard and must
  14-37  require the presence of a representative of the office of the
  14-38  attorney general to advise the board or the board's employees.
  14-39        SECTION 20.  Sections 5.01, 5.02, 5.03, 5.04, and 5.08, Texas
  14-40  Optometry Act (Articles 4552-5.01, 4552-5.02, 4552-5.03, 4552-5.04,
  14-41  and 4552-5.08, Vernon's Texas Civil Statutes), are amended to read
  14-42  as follows:
  14-43        Sec. 5.01.  Display of license.  Every person practicing
  14-44  optometry or therapeutic optometry in this state shall display the
  14-45  person's <his> license or certificate in a conspicuous place in the
  14-46  principal office where the person <he> practices optometry or
  14-47  therapeutic optometry and whenever required, exhibit such license
  14-48  or certificate to said board, or its authorized representative, and
  14-49  whenever practicing said profession of optometry or therapeutic
  14-50  optometry outside of, or away from said office or place of
  14-51  business, the person <he> shall deliver to each person fitted with
  14-52  glasses a bill, which shall contain the person's <his> signature,
  14-53  post-office address, and number of the person's <his> license or
  14-54  certificate, together with a specification of the lenses and
  14-55  material furnished and the prices charged for the same
  14-56  respectively.
  14-57        Sec. 5.02.  LICENSEE INFORMATION.  Each licensee shall file
  14-58  with the board:
  14-59              (1)  the licensee's mailing address;
  14-60              (2)  the address of the licensee's residence;
  14-61              (3)  the mailing address of each of the licensee's
  14-62  offices; and
  14-63              (4)  the address for the location of each of the
  14-64  licensee's offices if that address is different from the office's
  14-65  mailing address <RECORDATION OF LICENSE.  It shall be unlawful for
  14-66  any person to practice optometry or therapeutic optometry within
  14-67  the limits of this state who has not registered and recorded his
  14-68  license in the office of the county clerk of the county in which he
  14-69  resides, and in each county in which he practices, together with
  14-70  his age, post-office address, place of birth, subscribed and
   15-1  verified by his oath.  The fact of such oath and record shall be
   15-2  endorsed by the county clerk upon the license.  The absence of
   15-3  record of such license in the office of the county clerk shall be
   15-4  prima facie evidence of the lack of the possession of such license
   15-5  to practice optometry or therapeutic optometry>.
   15-6        Sec. 5.03.  DUTY TO UPDATE INFORMATION.  Not later than the
   15-7  10th day after the date of a change in any of the information
   15-8  required to be filed with the board under Section 5.02 of this Act,
   15-9  the licensee shall file with the board a written notice of the
  15-10  change <OPTOMETRY REGISTER.  Each county clerk in this state shall
  15-11  purchase a book of suitable size, to be known as the "Optometry
  15-12  Register" of such county, and set apart at least one full page for
  15-13  the registration of each optometrist and therapeutic optometrist,
  15-14  and record in said optometry register the name and record of each
  15-15  optometrist and therapeutic optometrist who presents for record a
  15-16  license or certificate issued by the state board.  When an
  15-17  optometrist or therapeutic optometrist shall have his license
  15-18  revoked, suspended, or cancelled, said county clerk, upon being
  15-19  notified by the board, shall make a note of the fact beneath the
  15-20  record in the optometry register, which entry shall close the
  15-21  record and be prima facie evidence of the fact that the license has
  15-22  been so cancelled, suspended or revoked.  The county clerk of each
  15-23  county shall, upon the request of the secretary of the board,
  15-24  certify to the board a correct list of the optometrists and
  15-25  therapeutic optometrists then registered in the county, together
  15-26  with such other information as the board may require>.
  15-27        Sec. 5.04.  Practice without license; fraud; house-to-house.
  15-28  It shall be unlawful for any person to:
  15-29              (1)  falsely impersonate any person duly licensed as an
  15-30  optometrist or therapeutic optometrist under the provisions of this
  15-31  Act or to falsely assume another name;
  15-32              (2)  buy, sell, or fraudulently obtain any optometry
  15-33  diploma, optometry or therapeutic optometry license, record of
  15-34  registration or aid or abet therein;
  15-35              (3)  practice, offer, or represent to others that the
  15-36  person is <hold himself out as> authorized to practice optometry or
  15-37  therapeutic optometry or use in connection with the person's <his>
  15-38  name any designation tending to imply that the person <he> is a
  15-39  practitioner of optometry or therapeutic optometry if not licensed
  15-40  to practice under the provisions of this Act;
  15-41              (4)  practice optometry or therapeutic optometry during
  15-42  the time the <his> license shall be suspended or revoked;
  15-43              (5)  fill an expired contact lens prescription; or
  15-44              (6)  practice optometry or therapeutic optometry from
  15-45  house-to-house or on the streets or highways, notwithstanding any
  15-46  laws for the licensing of peddlers.  This shall not be construed as
  15-47  prohibiting an optometrist, therapeutic optometrist, or physician
  15-48  from attending, prescribing for and furnishing spectacles,
  15-49  eyeglasses or ophthalmic lenses to a person who is confined to the
  15-50  person's <his> abode by reason of illness or physical or mental
  15-51  infirmity, or in response to an unsolicited request or call, for
  15-52  such professional services.
  15-53        Sec. 5.08.  PRACTICE WHILE SUFFERING FROM CONTAGIOUS DISEASE.
  15-54  (a)  No licensed optometrist or therapeutic optometrist shall
  15-55  practice optometry or therapeutic optometry while knowingly
  15-56  suffering from a contagious or infectious disease, as defined by
  15-57  the Texas Department of Health, if the disease is one that could
  15-58  reasonably be transmitted in the normal performance of optometry or
  15-59  therapeutic optometry.
  15-60        (b)  The board by rule shall adopt guidelines that define,
  15-61  according to guidelines issued by the Texas Department of Health
  15-62  and specific to the practice of optometry or therapeutic optometry,
  15-63  each disease or type of disease that could reasonably be
  15-64  transmitted in the normal performance of optometry or therapeutic
  15-65  optometry.
  15-66        SECTION 21.  Section 5.09, Texas Optometry Act (Article
  15-67  4552-5.09, Vernon's Texas Civil Statutes), is amended by amending
  15-68  Subsection (c) and adding Subsection (h) to read as follows:
  15-69        (c)  Any advertisement of the price of prescription
  15-70  spectacles or contact lenses is required to contain the following
   16-1  information:
   16-2              (1)  a statement of whether or not the cost of an
   16-3  examination, prescription services, and follow-up care by an eye
   16-4  doctor is included in the price;
   16-5              (2)  if the advertised goods are to be available to the
   16-6  public at the advertised price for less than 30 days after the date
   16-7  of publication of the advertisement, the advertisement shall state
   16-8  the time limitation on the offer;
   16-9              (3)  if the advertised goods are to be available to the
  16-10  public in limited quantities and no rainchecks are given upon total
  16-11  depletion of the inventory of the goods advertised, the
  16-12  advertisement shall state the total quantity available to all
  16-13  customers; <and>
  16-14              (4)  if the advertised goods are to be available to the
  16-15  public at a limited number per customer, the advertisement shall
  16-16  state the limit per customer; and
  16-17              (5)  with regard to contact lenses, the advertisement
  16-18  shall state the number of lenses included for the price specified.
  16-19        (h)  A statement required to appear in an advertisement under
  16-20  this section must be readily audible or readable by a person of
  16-21  average comprehension or reading speed.
  16-22        SECTION 22.  Section 5.10, Texas Optometry Act (Article
  16-23  4552-5.10, Vernon's Texas Civil Statutes), is amended to read as
  16-24  follows:
  16-25        Sec. 5.10.  BOARD RULES RESTRICTING ADVERTISING.  (a)  The
  16-26  board may not adopt <substantive> rules restricting competitive
  16-27  bidding or advertising by a person regulated by the board except to
  16-28  prohibit <adopt such rules as are necessary to prevent> false,
  16-29  misleading, or deceptive practices.
  16-30        (b)  The board may not include in its rules to prohibit
  16-31  false, misleading, or deceptive practices by a person regulated by
  16-32  the board a rule that:
  16-33              (1)  restricts the use of any medium for advertising;
  16-34              (2)  restricts the person's personal appearance or use
  16-35  of the person's voice in an advertisement;
  16-36              (3)  relates to the size or duration of an
  16-37  advertisement by the person;
  16-38              (4)  restricts the person's advertisement under a trade
  16-39  name;
  16-40              (5)  restricts any truthful statement regarding:
  16-41                    (A)  the address or telephone number of an office
  16-42  maintained by the person;
  16-43                    (B)  office hours regularly maintained by the
  16-44  person;
  16-45                    (C)  languages, other than English, fluently
  16-46  spoken by the person or a person in the person's office;
  16-47                    (D)  whether the person provides services under a
  16-48  specified private or public insurance plan or health-care plan;
  16-49                    (E)  publications authored by the person;
  16-50                    (F)  a teaching position held or formerly held by
  16-51  the person and the dates the position was held;
  16-52                    (G)  an affiliation with a hospital or clinic;
  16-53                    (H)  the fact that the person regularly accepts
  16-54  installment payment of fees;
  16-55                    (I)  the manufacturer, designer, style, make,
  16-56  trade name, brand name, color, size, or type of commodities
  16-57  advertised; or
  16-58                    (J)  other factual information that is not false,
  16-59  fraudulent, misleading, or likely to deceive; or
  16-60              (6)  restricts any truthful statement that relates to
  16-61  public health or that encourages preventive or corrective care.
  16-62        (c)  Subsection (b) of this section may not be construed to
  16-63  prevent the board from restricting advertising that is false,
  16-64  fraudulent, misleading, or likely to deceive.
  16-65        SECTION 23.  Section 5.12, Texas Optometry Act (Article
  16-66  4552-5.12, Vernon's Texas Civil Statutes), is amended to read as
  16-67  follows:
  16-68        Sec. 5.12.  BASIC COMPETENCE.  (a)  In order to ensure
  16-69  <insure> an adequate examination of a patient for whom an
  16-70  optometrist or therapeutic optometrist signs or causes to be signed
   17-1  a prescription for an ophthalmic lens, in the initial examination
   17-2  of the patient the optometrist or therapeutic optometrist shall
   17-3  make and record, if possible, the following findings of the
   17-4  condition of the patient:
   17-5              (1)  Case History (ocular, physical, occupational and
   17-6  other pertinent information).
   17-7              (2)  Visual <Far point> acuity<, O.D., O.S., O.U.,
   17-8  unaided; with old glasses, if available, and with new glasses, if
   17-9  any>.
  17-10              (3)  Biomicroscopy <External> examination (lids,
  17-11  cornea, sclera, etc.).
  17-12              (4)  Internal ophthalmoscopic examination (media,
  17-13  fundus, etc.).
  17-14              (5)  Static retinoscopy, O.D., O.S., or autorefractor.
  17-15              (6)  Subjective findings, far point and near point.
  17-16              (7)  Assessment of binocular function <Phorias or
  17-17  ductions, far and near, lateral and vertical>.
  17-18              (8)  Amplitude or range of accommodation.
  17-19              (9)  Tonometry <Amplitude or range of convergence>.
  17-20              (10)  Angle of vision, to right and to left.
  17-21        (b)  Every prescription for an ophthalmic lens shall include
  17-22  <the following information:  interpupillary distance, far and near;
  17-23  lens prescription, right and left; color or tint; segment type,
  17-24  size and position;> the optometrist's or  therapeutic optometrist's
  17-25  signature and the information and parameters that the optometrist
  17-26  or therapeutic optometrist considers relevant or necessary.  The
  17-27  prescription may not contain restrictions limiting the parameters
  17-28  to private labels not available to the optical industry as a whole.
  17-29  Specifications of a prescription for an ophthalmic lens may not be
  17-30  altered without the consent of the prescribing doctor.
  17-31        (c)  The willful or repeated failure or refusal of an
  17-32  optometrist or therapeutic optometrist to comply with any of the
  17-33  foregoing requirements shall be considered by the board to
  17-34  constitute prima facie evidence that the optometrist or therapeutic
  17-35  optometrist <he> is unfit or incompetent by reason of negligence
  17-36  within the meaning of Section 4.04(a)(3) of this Act, and shall be
  17-37  sufficient ground for the filing of charges to cancel, revoke or
  17-38  suspend the <his> license.  The charges shall state the specific
  17-39  instances in which it is alleged that the rule was not complied
  17-40  with.  At a hearing pursuant to the filing of such charges, the
  17-41  person charged shall have the burden of establishing that
  17-42  compliance with the rule in each instance in which proof is adduced
  17-43  that it was not complied with was not necessary to a proper
  17-44  examination of the patient in that particular case.
  17-45        SECTION 24.  Sections 5.13(d), (e), (g), (i), and (j), Texas
  17-46  Optometry Act (Article 4552-5.13, Vernon's Texas Civil Statutes),
  17-47  are amended to read as follows:
  17-48        (d)  An optometrist or therapeutic optometrist may practice
  17-49  optometry or therapeutic optometry under a trade name or an assumed
  17-50  name or under the name of a professional corporation or a
  17-51  professional association.  Every optometrist or therapeutic
  17-52  optometrist practicing in the State of Texas, including those
  17-53  practicing under a trade or assumed name, shall be required to
  17-54  display the actual name under which the optometrist or therapeutic
  17-55  optometrist <he> is licensed by the board in a manner such that the
  17-56  <his> name will be visible to the public prior to entry of the
  17-57  optometrist's or therapeutic optometrist's office reception area.
  17-58        (e)  No optometrist or therapeutic optometrist shall use,
  17-59  cause or allow to be used, the optometrist's or therapeutic
  17-60  optometrist's <his> name or professional identification, as
  17-61  authorized by Article 4590e, <as amended,> Revised <Civil> Statutes
  17-62  <of Texas, 1925>, and its subsequent amendments, on or about the
  17-63  door, window, wall, directory, or any sign or listing whatsoever,
  17-64  of any office, location or place where optometry or therapeutic
  17-65  optometry is practiced, unless said optometrist or therapeutic
  17-66  optometrist is actually present and practicing optometry or
  17-67  therapeutic optometry therein during the hours such office,
  17-68  location or place of practice is open to the public for the
  17-69  practice of optometry or therapeutic optometry.
  17-70        (g)  The requirement of Subsections (e) and (f) of this
   18-1  section that an optometrist or therapeutic optometrist be "actually
   18-2  present" in an office, location or place of practice holding the
   18-3  optometrist's or therapeutic optometrist's <his> name out to the
   18-4  public shall be deemed satisfied if the optometrist or therapeutic
   18-5  optometrist is, as to such office, location or place of practice,
   18-6  either:
   18-7              (1)  physically present therein more than half the
   18-8  total number of hours such office, location, or place of practice
   18-9  is open to the public for the practice of optometry or therapeutic
  18-10  optometry during each calendar month for at least nine months in
  18-11  each calendar year; or
  18-12              (2)  physically present in such office, location, or
  18-13  place of practice for at least one-half of the time such person
  18-14  conducts, directs, or supervises any practice of optometry or
  18-15  therapeutic optometry.
  18-16        (i)  The requirement of Subsections (e) and (f) of this
  18-17  section that an optometrist or therapeutic optometrist be
  18-18  "practicing optometry or therapeutic optometry" at an office,
  18-19  location, or place of practice holding the optometrist's or
  18-20  therapeutic optometrist's <his> name out to the public shall be
  18-21  deemed satisfied if the optometrist or therapeutic optometrist
  18-22  regularly makes personal examination at such office, location, or
  18-23  place of practice of the eyes of some of the persons prescribed for
  18-24  therein or regularly supervises or directs in person at such
  18-25  office, location or place of practice such examinations.
  18-26        (j)  The willful or repeated failure or refusal of an
  18-27  optometrist or therapeutic optometrist to comply with any of the
  18-28  provisions of this section shall be considered by the board to
  18-29  constitute prima facie evidence that such optometrist or
  18-30  therapeutic optometrist is guilty of violation of this Act, and
  18-31  shall be sufficient ground for the filing of charges to cancel,
  18-32  revoke or suspend a <his> license.  The charges shall state the
  18-33  specific instance or instances in which it is alleged that the rule
  18-34  was not complied with.  Alternatively, or in addition to the above,
  18-35  it shall be the duty of the board to institute and prosecute an
  18-36  action in a court of competent jurisdiction to restrain or enjoin
  18-37  the violation of any of the preceding rules.
  18-38        SECTION 25.  Sections 5.14(c) and (g), Texas Optometry Act
  18-39  (Article 4552-5.14, Vernon's Texas Civil Statutes), are amended to
  18-40  read as follows:
  18-41        (c)  The prescription files and all business records of the
  18-42  optometric practice shall be the sole property of the optometrist
  18-43  or therapeutic optometrist and free from involvement with the
  18-44  mercantile establishment or any unlicensed person.  Except,
  18-45  however, that those business records essential to the successful
  18-46  initiation or continuation of a percentage of gross receipts lease
  18-47  of space may be inspected by the applicable lessor.
  18-48        (g)  The optometrist or therapeutic optometrist shall not
  18-49  permit the optometrist's or therapeutic optometrist's <his> name or
  18-50  <his> practice to be directly or indirectly used in connection with
  18-51  the mercantile establishment in any advertising, displays, signs,
  18-52  or in any other manner.
  18-53        SECTION 26.  Sections 5.15(d) and (e), Texas Optometry Act
  18-54  (Article 4552-5.15, Vernon's Texas Civil Statutes), are amended to
  18-55  read as follows:
  18-56        (d)  No person, firm, or corporation engaged in the business
  18-57  of a dispensing optician, other than a licensed optometrist,
  18-58  therapeutic optometrist, or physician, shall have, own, or acquire
  18-59  any interest in the practice, books, records, files, equipment, or
  18-60  materials of a licensed optometrist or therapeutic optometrist, or
  18-61  have, own, or acquire any interest in the premises or space
  18-62  occupied by a licensed optometrist or therapeutic optometrist for
  18-63  the practice of optometry or therapeutic optometry other than a
  18-64  lease for a specific term without retention of the present right of
  18-65  occupancy on the part of the dispensing optician.  In the event an
  18-66  optometrist, therapeutic optometrist, or physician who is also
  18-67  engaged in the business of a dispensing optician (whether as an
  18-68  individual, firm, or corporation) does own an interest in the
  18-69  practice, books, records, files, equipment or materials of another
  18-70  licensed optometrist or therapeutic optometrist, the optometrist,
   19-1  therapeutic optometrist, or physician <he> shall maintain a
   19-2  completely separate set of books, records, files, and accounts in
   19-3  connection therewith.
   19-4        (e)  If, after examining a patient, an optometrist or
   19-5  therapeutic optometrist believes that lenses are required to
   19-6  correct or remedy any defect or abnormal condition of vision, the
   19-7  optometrist or therapeutic optometrist shall so inform the patient
   19-8  and shall provide the patient with a copy of the patient's
   19-9  spectacle prescription.  The optometrist or therapeutic optometrist
  19-10  shall expressly indicate verbally or by other means that the
  19-11  patient has two alternatives for the preparation of the lenses
  19-12  according to the optometrist's or therapeutic optometrist's
  19-13  prescription:  First, that the optometrist or therapeutic
  19-14  optometrist will prepare or have the lenses prepared according to
  19-15  the prescription; and second, that the patient may have the
  19-16  prescription filled by any dispensing optician but should return
  19-17  for an optometrical examination of the lenses.  This subsection
  19-18  does not require an optometrist or therapeutic optometrist to
  19-19  provide a prescription to a patient before the patient has paid the
  19-20  examination fee.
  19-21        SECTION 27.  Section 5.17, Texas Optometry Act (Article
  19-22  4552-5.17, Vernon's Texas Civil Statutes), is amended to read as
  19-23  follows:
  19-24        Sec. 5.17.  Exceptions.  (a)  Nothing in this Act shall be
  19-25  construed to apply to <persons who sell ready-to-wear spectacles
  19-26  and eyeglasses as merchandise at retail or> officers or agents of
  19-27  the United States or the State of Texas, in the discharge of their
  19-28  official duties.
  19-29        (b)  Nothing in this Act shall prevent, limit, or interfere
  19-30  with the right of a physician duly licensed by the Texas State
  19-31  Board of Medical Examiners to treat or prescribe for <his> patients
  19-32  or to direct or instruct others under the control, supervision, or
  19-33  direction of such a physician to aid or minister to the needs of
  19-34  <his> patients according to the physician's specific directions,
  19-35  instructions or prescriptions; and where such directions,
  19-36  instructions, or prescriptions are to be followed, performed, or
  19-37  filled outside or away from the physician's office such directions,
  19-38  instructions, or prescriptions shall be in writing.
  19-39        (c)  Nothing in this Act shall be construed to prevent
  19-40  persons from selling ready-to-wear spectacles as merchandise at
  19-41  retail, nor to prevent unlicensed persons from making simple
  19-42  repairs to spectacles.
  19-43        (d)  Nothing in this Act shall prevent, limit, or interfere
  19-44  with the right of a dispensing optician or ophthalmic dispenser
  19-45  registered under the Opticians' Registry Act (Article 4551-1,
  19-46  Vernon's Texas Civil Statutes) and its subsequent amendments to
  19-47  engage in spectacle or contact lens dispensing as defined by that
  19-48  Act.  This subsection does not prohibit the board from acting under
  19-49  this Act to restrict the unauthorized practice of optometry.
  19-50        SECTION 28.  Section 5.18, Texas Optometry Act (Article
  19-51  4552-5.18, Vernon's Texas Civil Statutes), is amended by amending
  19-52  Subsections (a) and (b) and adding Subsection (e) to read as
  19-53  follows:
  19-54        (a)  It shall be a violation of this Act for any person who
  19-55  is not a licensed optometrist, therapeutic optometrist, or
  19-56  physician to engage in the practice of optometry or therapeutic
  19-57  optometry as such practices are defined by this Act or to engage in
  19-58  any activity prohibited by this Act.
  19-59        (b)  Any person who shall be injured by another person who
  19-60  violates this section may institute suit in any district court in
  19-61  Travis County or in the county wherein the violation is alleged to
  19-62  have occurred to require enforcement by injunctive procedures and
  19-63  to recover damages sustained, plus costs of court and reasonable
  19-64  attorney's fees.
  19-65        (e)  A person commits an offense if that person dispenses
  19-66  contact lenses by mail or otherwise to a patient in this state
  19-67  without having a valid prescription signed by an optometrist,
  19-68  therapeutic optometrist, or physician.  An offense under this
  19-69  subsection is a misdemeanor punishable by a fine in the amount of
  19-70  $1,000 for each lens so dispensed.  This fine is in addition to any
   20-1  other penalty imposed under this Act.
   20-2        SECTION 29.  Section 5.19, Texas Optometry Act (Article
   20-3  4552-5.19, Vernon's Texas Civil Statutes), is amended to read as
   20-4  follows:
   20-5        Sec. 5.19.  PENALTY.  A person who violates any provision of
   20-6  this Act is guilty of a misdemeanor and upon conviction is
   20-7  punishable by a fine of not less than $100 <$50> nor more than
   20-8  $1,000 <$500> or by confinement in the county jail for not less
   20-9  than two months nor more than six months, or both.  A separate
  20-10  offense is committed each day a violation of this Act occurs or
  20-11  continues.
  20-12        SECTION 30.  Article 5, Texas Optometry Act (Article
  20-13  4552-5.01 et seq., Vernon's Texas Civil Statutes), is amended by
  20-14  adding Section 5.21 to read as follows:
  20-15        Sec. 5.21.  OWNERSHIP OF RECORDS.  (a)  All prescription
  20-16  files, patient records, and business records of an optometric
  20-17  practice are the sole property of the optometrist or therapeutic
  20-18  optometrist.
  20-19        (b)  A patient may obtain a copy of the patient's optometric
  20-20  records, or may have them forwarded to another doctor, by making a
  20-21  signed, written request to the optometrist or therapeutic
  20-22  optometrist for the records.
  20-23        (c)  The optometrist or therapeutic optometrist may charge a
  20-24  reasonable processing fee for providing optometric records to a
  20-25  patient.
  20-26        (d)  The optometric records may be provided in summary form
  20-27  unless the patient specifically requests otherwise.
  20-28        SECTION 31.  The Texas Optometry Act (Article 4552-1.01 et
  20-29  seq., Vernon's Texas Civil Statutes) is amended by amending Article
  20-30  6 and adding Article 7 to read as follows:
  20-31   ARTICLE 6.  DISCRIMINATION PROHIBITED <MISCELLANEOUS PROVISIONS>
  20-32        Sec. 6.01.  GOVERNMENTAL DISCRIMINATION PROHIBITED.  (a)  A
  20-33  program supported, in whole or in part, by this state, or a program
  20-34  supported or provided by a state agency, or a county, municipality,
  20-35  or other political subdivision, may not discriminate against a
  20-36  health-care practitioner because the practitioner is an optometrist
  20-37  or therapeutic optometrist or physician specializing in
  20-38  ophthalmology.
  20-39        (b)  A law of this state or a rule, ordinance, or policy of
  20-40  an agency or political subdivision of this state that requires or
  20-41  encourages a person to obtain vision care or medical eye care that
  20-42  is within the scope of practice of an optometrist or therapeutic
  20-43  optometrist may not discriminate against a health-care practitioner
  20-44  because the practitioner is an optometrist or therapeutic
  20-45  optometrist or physician specializing in ophthalmology.
  20-46                 ARTICLE 7.  MISCELLANEOUS PROVISIONS
  20-47        Sec. 7.01.  REFERENCE TO BOARD OF EXAMINERS <ABOLISHED>.
  20-48  <The Texas State Board of Examiners in Optometry is abolished.  All
  20-49  property, equipment, records, files, and papers in the possession
  20-50  of that board are transferred to the Texas Optometry Board created
  20-51  by this Act.>  All references in the statutes to the Texas State
  20-52  Board of Examiners in Optometry shall be construed to mean the
  20-53  Texas Optometry Board.
  20-54        Sec. 7.02 <6.02>.  Severability.  If any provision, section
  20-55  or clause of this Act or application thereof to any person or
  20-56  circumstances is held invalid, such invalidity shall not affect
  20-57  other provisions or applications thereof which can be given effect
  20-58  without the invalid provision, section or clause, and to this end
  20-59  the provisions of this Act are declared to be severable.
  20-60        <Sec. 6.03.  REPEALER.  Chapter 10, Title 71, Revised Civil
  20-61  Statutes of Texas, 1925, as amended, and Chapter 5, Title 12, Penal
  20-62  Code of Texas, 1925, as amended, and all other laws and parts of
  20-63  laws in conflict with this Act are hereby repealed.>
  20-64        <Sec. 6.04.  EFFECTIVE DATE.  This Act takes effect September
  20-65  1, 1969.>
  20-66        <Sec. 6.05.  EMERGENCY.  The fact that the practice of
  20-67  optometry has become one of the important health professions and it
  20-68  is in the interest of the people of Texas that the practice of
  20-69  optometry and that optometrists, in keeping with the traditions of
  20-70  the other health professions, be properly regulated, and the
   21-1  further fact that existing laws have proved ineffective in securing
   21-2  the underlying purposes and objectives of this Act, create an
   21-3  emergency of the greatest importance to the visual health and
   21-4  welfare of the people of Texas and an imperative public necessity
   21-5  requiring that the Constitutional Rule that bills be read on three
   21-6  several days in each House be suspended, and such Rule is hereby
   21-7  suspended; and this Act shall take effect and be in force from and
   21-8  after its passage, and it is so enacted.>
   21-9        SECTION 32.  Subchapter E, Chapter 21, Insurance Code, is
  21-10  amended by adding Article 21.52D to read as follows:
  21-11        Art. 21.52D.  USE OF OPTOMETRISTS AND OPHTHALMOLOGISTS BY
  21-12  MANAGED CARE PLAN.  (a)  In this article:
  21-13              (1)  "Managed care plan" means a health maintenance
  21-14  organization, a preferred provider organization, or another
  21-15  organization that provides or arranges for health care benefits to
  21-16  participants and that requires or encourages participants to use
  21-17  health care practitioners designated by the plan.
  21-18              (2)  "Ophthalmologist" means a physician who is
  21-19  licensed by the Texas State Board of Medical Examiners and who
  21-20  specializes in ophthalmology.
  21-21        (b)  A managed care plan that provides or arranges for
  21-22  benefits for vision or medical eye care services or procedures that
  21-23  are within the scope of the license of an optometrist or
  21-24  therapeutic optometrist may not:
  21-25              (1)  discriminate against a health care practitioner
  21-26  because the practitioner is an optometrist, therapeutic
  21-27  optometrist, or ophthalmologist;
  21-28              (2)  fail to include optometrists, therapeutic
  21-29  optometrists, and ophthalmologists as participating practitioners
  21-30  in the plan;
  21-31              (3)  restrict or discourage a participant from
  21-32  obtaining covered vision or medical eye care services or procedures
  21-33  from a participating optometrist, therapeutic optometrist, or
  21-34  ophthalmologist because the practitioner is an optometrist,
  21-35  therapeutic optometrist, or ophthalmologist;
  21-36              (4)  fail to include the name of a participating
  21-37  optometrist, therapeutic optometrist, or ophthalmologist on a list
  21-38  of participating practitioners or fail to give equal prominence to
  21-39  the name;
  21-40              (5)  fail to include an optometrist, therapeutic
  21-41  optometrist, or ophthalmologist as a participating practitioner in
  21-42  the plan because the optometrist, therapeutic optometrist, or
  21-43  ophthalmologist does not have medical staff privileges at a
  21-44  hospital or at a particular hospital; or
  21-45              (6)  fail to include an optometrist, therapeutic
  21-46  optometrist, or ophthalmologist as a participating practitioner in
  21-47  the plan because the services or procedures provided by the
  21-48  optometrist, therapeutic optometrist, or ophthalmologist may be
  21-49  provided by another type of practitioner.
  21-50        (c)  This article does not require a managed care plan to
  21-51  provide vision or medical eye care services or procedures.
  21-52        SECTION 33.  The changes in law made by this Act to the
  21-53  requirements for membership on the Texas Optometry Board apply only
  21-54  to an appointment made on or after the effective date of this Act
  21-55  and do not affect the entitlement of a member serving on the board
  21-56  on the effective date of this Act to continue to hold office for
  21-57  the remainder of the term for which the person was appointed.
  21-58        SECTION 34.  On and after January 1, 1994, the State Office
  21-59  of Administrative Hearings shall assume responsibility for hearings
  21-60  held with respect to each contested case arising under the Texas
  21-61  Optometry Act (Article 4552-1.01 et seq., Vernon's Texas Civil
  21-62  Statutes).  The Texas Optometry Board and the chief administrative
  21-63  law judge of the State Office of Administrative Hearings may agree
  21-64  to transfer contested cases pending before the board to the State
  21-65  Office of Administrative Hearings before January 1, 1994.
  21-66        SECTION 35.  Not later than January 1, 1994, each person
  21-67  licensed under the Texas Optometry Act (Article 4552-1.01 et seq.,
  21-68  Vernon's Texas Civil Statutes) shall file with the Texas Optometry
  21-69  Board the information required under Section 5.02, Texas Optometry
  21-70  Act (Article 4552-5.02, Vernon's Texas Civil Statutes), as amended
   22-1  by this Act.
   22-2        SECTION 36.  The Texas Optometry Board shall adopt rules
   22-3  required by this Act not later than December 31, 1993.
   22-4        SECTION 37.  Article 21.52D, Insurance Code, as added by this
   22-5  Act, applies only to a managed care plan that is delivered, issued
   22-6  for delivery, or renewed on or after January 1, 1994.  A managed
   22-7  care plan that is delivered, issued for delivery, or renewed before
   22-8  January 1, 1994, is governed by the law as it existed immediately
   22-9  before the effective date of this Act, and that law is continued in
  22-10  effect for that purpose.
  22-11        SECTION 38.  This Act takes effect September 1, 1993.
  22-12        SECTION 39.  The importance of this legislation and the
  22-13  crowded condition of the calendars in both houses create an
  22-14  emergency and an imperative public necessity that the
  22-15  constitutional rule requiring bills to be read on three several
  22-16  days in each house be suspended, and this rule is hereby suspended.
  22-17                               * * * * *
  22-18                                                         Austin,
  22-19  Texas
  22-20                                                         May 21, 1993
  22-21  Hon. Bob Bullock
  22-22  President of the Senate
  22-23  Sir:
  22-24  We, your Committee on Health and Human Services to which was
  22-25  referred H.B. No. 1479, have had the same under consideration, and
  22-26  I am instructed to report it back to the Senate with the
  22-27  recommendation that it do not pass, but that the Committee
  22-28  Substitute adopted in lieu thereof do pass and be printed.
  22-29                                                         Zaffirini,
  22-30  Chair
  22-31                               * * * * *
  22-32                               WITNESSES
  22-33                                                  FOR   AGAINST  ON
  22-34  ___________________________________________________________________
  22-35  Name:  Ron Allen                                               x
  22-36  Representing:  Sunset Staff
  22-37  City:  Austin
  22-38  -------------------------------------------------------------------
  22-39  Name:  Lois Ewald                                              x
  22-40  Representing:  Tx Optometry Board
  22-41  City:  Austin
  22-42  -------------------------------------------------------------------
  22-43  Name:  Kim Castleberry                           x
  22-44  Representing:  Tx Optometric Asso.
  22-45  City:  Plano
  22-46  -------------------------------------------------------------------