By: Parker S.B. No. 1425
73R6980 JMM-D
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to the regulation of marriage and family therapists and to
1-3 the continuation and operation of the Texas State Board of
1-4 Examiners of Marriage and Family Therapists; providing penalties.
1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-6 SECTION 1. Section 3(b), Licensed Marriage and Family
1-7 Therapist Act (Article 4512c-1, Vernon's Texas Civil Statutes), is
1-8 amended to read as follows:
1-9 (b) Appointments to the board shall be made without regard
1-10 to the race, color, disability <handicap>, sex, religion, age, or
1-11 national origin of the appointee.
1-12 SECTION 2. Section 4, Licensed Marriage and Family Therapist
1-13 Act (Article 4512c-1, Vernon's Texas Civil Statutes), is amended to
1-14 read as follows:
1-15 Sec. 4. Sunset provision. <(a)> The Texas State Board of
1-16 Examiners of Marriage and Family Therapists is subject to Chapter
1-17 325, Government Code (Texas Sunset Act). Unless continued in
1-18 existence as provided by that chapter, the board is abolished and
1-19 this Act expires September 1, 2005 <1993>.
1-20 <(b) The board shall cooperate with the Sunset Advisory
1-21 Commission in the commission's review of those agencies that
1-22 license or regulate mental health professionals and will be
1-23 reviewed for the Regular Session of the 73rd Legislature in 1993.
1-24 The board shall assist the Sunset Advisory Commission in
2-1 determining the extent to which the agencies that license or
2-2 regulate mental health professionals should be combined into a
2-3 single agency.>
2-4 SECTION 3. Section 9, Licensed Marriage and Family Therapist
2-5 Act (Article 4512c-1, Vernon's Texas Civil Statutes), is amended to
2-6 read as follows:
2-7 Sec. 9. Restrictions on appointment, membership, and
2-8 employment. (a) A member of the board or an employee of the
2-9 department who performs functions for the board may not<:>
2-10 <(1) be an officer, employee, or paid consultant of a
2-11 trade association in the field of marriage and family therapy or a
2-12 related mental health field;>
2-13 <(2) be related within the second degree by affinity
2-14 or within the third degree by consanguinity to a person who is an
2-15 officer, employee, or paid consultant of a trade association in the
2-16 field of marriage and family therapy or a related mental health
2-17 field; or>
2-18 <(3)> communicate directly or indirectly with a party
2-19 or the party's representative to a proceeding pending before the
2-20 board if the member or employee is assigned to make a decision, a
2-21 finding of fact, or a conclusion of law in the proceeding, unless
2-22 notice and an opportunity to participate are given to each party to
2-23 the proceeding.
2-24 (b) An officer, employee, or paid consultant of a Texas
2-25 trade association in the field of health care may not be a member
2-26 or employee of the board who is exempt from the state's position
2-27 classification plan or is compensated at or above the amount
3-1 prescribed by the General Appropriations Act for step 1, salary
3-2 group 17, of the position classification salary schedule.
3-3 (c) A person who is the spouse of an officer, manager, or
3-4 paid consultant of a Texas trade association in the field of health
3-5 care may not be a board member and may not be an employee of the
3-6 board who is exempt from the state's position classification plan
3-7 or is compensated at or above the amount prescribed by the General
3-8 Appropriations Act for step 1, salary group 17, of the position
3-9 classification salary schedule.
3-10 (d) For the purposes of this section, a Texas trade
3-11 association is a nonprofit, cooperative, and voluntarily joined
3-12 association of business or professional competitors in this state
3-13 designed to assist its members and its industry or profession in
3-14 dealing with mutual business or professional problems and in
3-15 promoting their common interest.
3-16 (e) A person is not eligible for appointment as a public
3-17 member of the board if the person or the person's spouse:
3-18 (1) is registered, certified, or licensed by an
3-19 occupational regulatory agency in the field of health care;
3-20 (2) is employed by or participates in the management
3-21 of a business entity or other organization regulated by the board
3-22 or receiving funds from the board;
3-23 (3) owns or controls, directly or indirectly, more
3-24 than 10 percent interest in a business entity or other organization
3-25 regulated by the board or receiving funds from the board; or
3-26 (4) uses or receives a substantial amount of tangible
3-27 goods, services, or funds from the board, other than compensation
4-1 or reimbursement authorized by law for board membership,
4-2 attendance, or expenses.
4-3 (f) <A public member of the board or the spouse of a public
4-4 member may not have been or be related to a person within the
4-5 second degree by affinity or the third degree by consanguinity who
4-6 has, except as a consumer, a financial interest in the field of
4-7 marriage and family therapy or a related mental health field.>
4-8 <(c)> A person may not serve as a member of the board or act
4-9 as general counsel to the board if the person is required to
4-10 register as a lobbyist under Chapter 305, Government Code, because
4-11 of the person's activities for compensation on behalf of a
4-12 profession related to the operation of the board.
4-13 SECTION 4. Section 11, Licensed Marriage and Family
4-14 Therapist Act (Article 4512c-1, Vernon's Texas Civil Statutes), is
4-15 amended by amending Subsections (b) and (c) and adding Subsections
4-16 (d)-(h) to read as follows:
4-17 (b) The board shall keep an information file about each
4-18 complaint filed with the board. The board's information file shall
4-19 be kept current and contain a record for each complaint of:
4-20 (1) all persons contacted in relation to the
4-21 complaint;
4-22 (2) a summary of findings made at each step of the
4-23 complaint process;
4-24 (3) an explanation of the legal basis and reason for a
4-25 complaint that is dismissed; and
4-26 (4) other relevant information <that the board has
4-27 authority to resolve>.
5-1 (c) If a written complaint is filed with the board that the
5-2 board has authority to resolve, the board, at least quarterly and
5-3 until final disposition of the complaint, shall notify the parties
5-4 to the complaint of the status of the complaint unless notice would
5-5 jeopardize an undercover investigation.
5-6 (d) The board of health by rule shall adopt a form to
5-7 standardize information concerning complaints made to the board.
5-8 The board of health by rule shall prescribe information to be
5-9 provided to a person when the person files a complaint with the
5-10 board.
5-11 (e) The board shall provide reasonable assistance to a
5-12 person who wishes to file a complaint with the board.
5-13 (f) <(c)> The board shall develop and implement policies
5-14 that provide the public with a reasonable opportunity to appear
5-15 before the board and to speak on any issue under the jurisdiction
5-16 of the board.
5-17 (g) The board of health by rule shall establish methods by
5-18 which consumers and service recipients are notified of the name,
5-19 mailing address, and telephone number of the board for the purpose
5-20 of directing complaints to the board. The board of health may
5-21 provide for that notification:
5-22 (1) on each registration form, application, or written
5-23 contract for services of an individual or entity regulated by the
5-24 board;
5-25 (2) on a sign prominently displayed in the place of
5-26 business of each individual or entity regulated by the board; or
5-27 (3) in a bill for service provided by an individual or
6-1 entity regulated by the board.
6-2 (h) The board shall list along with its regular telephone
6-3 number the toll-free telephone number that may be called to present
6-4 a complaint about a health professional if the toll-free number is
6-5 established under other state law.
6-6 SECTION 5. The Licensed Marriage and Family Therapist Act
6-7 (Article 4512c-1, Vernon's Texas Civil Statutes) is amended by
6-8 adding Sections 11A, 11B, and 11C to read as follows:
6-9 Sec. 11A. COMPLAINT INVESTIGATION AND DISPOSITION. (a) The
6-10 board of health shall adopt rules concerning the investigation of a
6-11 complaint filed with the board. The rules adopted under this
6-12 subsection shall:
6-13 (1) distinguish between categories of complaints;
6-14 (2) ensure that complaints are not dismissed without
6-15 appropriate consideration;
6-16 (3) require that the board be advised of a complaint
6-17 that is dismissed and that a letter be sent to the person who filed
6-18 the complaint explaining the action taken on the dismissed
6-19 complaint;
6-20 (4) ensure that the person who filed the complaint has
6-21 an opportunity to explain the allegations made in the complaint;
6-22 and
6-23 (5) prescribe guidelines concerning the categories of
6-24 complaints that require the use of a private investigator and the
6-25 procedures for the board to obtain the services of a private
6-26 investigator.
6-27 (b) The board shall dispose of all complaints in a timely
7-1 manner. The board shall establish a schedule for conducting each
7-2 phase of a complaint that is under the control of the board not
7-3 later than the 30th day after the date the complaint is received by
7-4 the board. The schedule shall be kept in the information file for
7-5 the complaint and all parties shall be notified of the projected
7-6 time requirements for pursuing the complaint. A change in the
7-7 schedule must be noted in the complaint information file and all
7-8 parties to the complaint must be notified not later than the
7-9 seventh day after the date the change is made.
7-10 (c) The executive director of the board shall notify the
7-11 board of a complaint that extends beyond the time prescribed by the
7-12 board for resolving the complaint so that the board may take
7-13 necessary action on the complaint.
7-14 Sec. 11B. INFORMAL PROCEEDINGS. (a) The board of health by
7-15 rule shall adopt procedures governing:
7-16 (1) informal disposition of a contested case under
7-17 Section 13(e), Administrative Procedure and Texas Register Act
7-18 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
7-19 subsequent amendments; and
7-20 (2) informal proceedings held in compliance with
7-21 Section 18(c), Administrative Procedure and Texas Register Act
7-22 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
7-23 subsequent amendments.
7-24 (b) Rules adopted under this section must provide the
7-25 complainant and the license holder an opportunity to be heard and
7-26 must require the presence of an attorney to advise the board or
7-27 board's employees. The attorney must be a member of the board's
8-1 legal staff if the board has a legal staff. If the board does not
8-2 have a legal staff, the attorney must be an employee of the office
8-3 of the attorney general.
8-4 Sec. 11C. MONITORING OF LICENSE HOLDER. The board of health
8-5 by rule shall develop a system for monitoring license holders'
8-6 compliance with the requirements of this Act. Rules adopted under
8-7 this section shall include procedures for monitoring a license
8-8 holder who is ordered by the board to perform certain acts to
8-9 ascertain that the license holder performs the required acts and to
8-10 identify and monitor license holders who represent a risk to the
8-11 public.
8-12 SECTION 6. Sections 12(a), (b), and (c), Licensed Marriage
8-13 and Family Therapist Act (Article 4512c-1, Vernon's Texas Civil
8-14 Statutes), are amended to read as follows:
8-15 (a) The board of health shall by rule establish reasonable
8-16 and necessary <set> fees so that the fees, in the aggregate,
8-17 produce sufficient revenue to cover the cost of administering <for
8-18 licenses, license renewals, examinations, and all other
8-19 administrative expenses under> this Act.
8-20 (b) The fees set by the board of health may be adjusted so
8-21 that the total fees collected are sufficient to meet the expenses
8-22 of administering this Act. The board of health may not set a fee
8-23 for an amount less than the amount of that fee on September 1, 1993
8-24 <The board of health shall set the fees in amounts that are
8-25 reasonable and necessary to cover administrative costs>.
8-26 (c) The marriage and family therapists licensing account is
8-27 created in the General Revenue Fund and may be used only by the
9-1 board of health and the department in the administration of this
9-2 Act. All money paid to <Fees received by> the board of health
9-3 under this Act shall be deposited in the General Revenue Fund to
9-4 the credit of the account.
9-5 SECTION 7. Section 14, Licensed Marriage and Family
9-6 Therapist Act (Article 4512c-1, Vernon's Texas Civil Statutes), is
9-7 amended by adding Subsection (d) to read as follows:
9-8 (d) The board shall develop and implement policies that
9-9 clearly define the respective responsibilities of the board and the
9-10 staff of the board.
9-11 SECTION 8. The Licensed Marriage and Family Therapist Act
9-12 (Article 4512c-1, Vernon's Texas Civil Statutes) is amended by
9-13 adding Section 14A to read as follows:
9-14 Sec. 14A. PERSONNEL POLICIES. (a) The executive director
9-15 or the executive director's designee shall develop an intra-agency
9-16 career ladder program. The program shall require intra-agency
9-17 posting of all nonentry level positions concurrently with any
9-18 public posting.
9-19 (b) The executive director or the executive director's
9-20 designee shall develop a system of annual performance evaluations
9-21 based on measurable job tasks. All merit pay for board employees
9-22 must be based on the system established under this subsection.
9-23 SECTION 9. The Licensed Marriage and Family Therapist Act
9-24 (Article 4512c-1, Vernon's Texas Civil Statutes) is amended by
9-25 adding Section 14B to read as follows:
9-26 Sec. 14B. EQUAL EMPLOYMENT OPPORTUNITY POLICIES. (a) The
9-27 executive director or the executive director's designee shall
10-1 prepare and maintain a written policy statement to ensure
10-2 implementation of a program of equal employment opportunity under
10-3 which all personnel transactions are made without regard to race,
10-4 color, disability, sex, religion, age, or national origin. The
10-5 policy statement must include:
10-6 (1) personnel policies, including policies relating to
10-7 recruitment, evaluation, selection, application, training, and
10-8 promotion of personnel that are in compliance with the Commission
10-9 on Human Rights Act (Article 5221k, Vernon's Texas Civil Statutes)
10-10 and its subsequent amendments;
10-11 (2) a comprehensive analysis of the board workforce
10-12 that meets federal and state guidelines;
10-13 (3) procedures by which a determination can be made of
10-14 significant underuse in the board workforce of all persons for whom
10-15 federal or state guidelines encourage a more equitable balance; and
10-16 (4) reasonable methods to appropriately address those
10-17 areas of underuse.
10-18 (b) A policy statement prepared under Subsection (a) of this
10-19 section must cover an annual period, be updated annually, be
10-20 reviewed by the Commission on Human Rights for compliance with
10-21 Subsection (a)(1) of this section, and be filed with the governor's
10-22 office.
10-23 (c) The governor's office shall deliver a biennial report to
10-24 the legislature based on the information received under Subsection
10-25 (b) of this section. The report may be made separately or as part
10-26 of other biennial reports to the legislature.
10-27 SECTION 10. The Licensed Marriage and Family Therapist Act
11-1 (Article 4512c-1, Vernon's Texas Civil Statutes) is amended by
11-2 adding Section 14C to read as follows:
11-3 Sec. 14C. PROGRAM ACCESSIBILITY. The board shall prepare
11-4 and maintain a written plan that describes how a person who does
11-5 not speak English can be provided reasonable access to the board's
11-6 programs. The board shall also comply with federal and state laws
11-7 for program and facility accessibility.
11-8 SECTION 11. The Licensed Marriage and Family Therapist Act
11-9 (Article 4512c-1, Vernon's Texas Civil Statutes) is amended by
11-10 adding Section 14D to read as follows:
11-11 Sec. 14D. TRAINING; STANDARDS OF CONDUCT INFORMATION. (a)
11-12 Each board member shall comply with the board member training
11-13 requirements established by any other state agency that is given
11-14 authority to establish the requirements for the board.
11-15 (b) The board shall provide to its members and employees, as
11-16 often as necessary, information regarding their qualifications for
11-17 office or employment under this Act and their responsibilities
11-18 under applicable laws relating to standards of conduct for state
11-19 officers or employees.
11-20 SECTION 12. Sections 19(a) and (d), Licensed Marriage and
11-21 Family Therapist Act (Article 4512c-1, Vernon's Texas Civil
11-22 Statutes), are amended to read as follows:
11-23 (a) Unless exempted from the examination requirement under
11-24 Section 30 of this Act or by a determination of the board based on
11-25 the applicant's education and professional experience, each
11-26 applicant for a license under this Act must pass an examination
11-27 prescribed by the board. The board shall have the written portion
12-1 of the examination, if any, validated by an independent testing
12-2 professional and approved by the commissioner of health. The
12-3 examination may be composed of:
12-4 (1) a written examination;
12-5 (2) a field examination, through questionnaires
12-6 answered by the applicant's instructors, employers, supervisors, or
12-7 other persons who are competent in the judgment of the board to
12-8 assess the applicant's professional ability, and that may include
12-9 written case studies and taped interviews;
12-10 (3) an oral examination; or
12-11 (4) any combination of those examinations.
12-12 (d) Unless the examination is graded or reviewed by a
12-13 national testing service, the board shall notify each examinee of
12-14 the results of the examination not later than the 30th day after
12-15 the day on which a licensing examination is administered under this
12-16 Act <30 days after the examination date>. However, if <If> the
12-17 examination is <so> graded or reviewed by a national testing
12-18 service, the board shall notify each examinee of the results not
12-19 later than the 14th day <15 days> after the date on which the board
12-20 receives the results from the national testing service. If the
12-21 notice of examination results graded or reviewed by a national
12-22 testing service will be delayed for more than 90 days after the
12-23 examination date, the board shall notify each examinee of the
12-24 reason for the delay before <not later than> the 90th day <after
12-25 the examination date>.
12-26 SECTION 13. Section 20, Licensed Marriage and Family
12-27 Therapist Act (Article 4512c-1, Vernon's Texas Civil Statutes), is
13-1 amended by adding Subsection (c) to read as follows:
13-2 (c) The board of health by rule may provide for the issuance
13-3 of a temporary license. Rules adopted under this subsection shall
13-4 include a time limit for a temporary license.
13-5 SECTION 14. Section 21, Licensed Marriage and Family
13-6 Therapist Act (Article 4512c-1, Vernon's Texas Civil Statutes), is
13-7 amended to read as follows:
13-8 Sec. 21. License renewal. (a) A license issued under this
13-9 Act is subject to annual renewal. The board shall adopt a system
13-10 under which licenses expire on various dates during the year.
13-11 (b) A license holder may renew an unexpired license by
13-12 paying to the board <the renewal fee> before the expiration date of
13-13 the license the required renewal fee.
13-14 (c) If a person's license has been expired for <less than>
13-15 90 days or less, the person may renew the license by paying to the
13-16 board the required renewal fee and a fee that is one-half of the
13-17 examination fee for the license <the unpaid renewal fees plus a
13-18 late renewal fee in an amount determined by the board>.
13-19 (d) If a person's license has been expired for longer than
13-20 90 days but less than one year, the person may renew the license by
13-21 paying to the board all unpaid renewal fees and a fee that is equal
13-22 to the examination fee for the license.
13-23 (e) If the person's license has been expired for one year or
13-24 longer <90 days or more>, the person may not renew the license.
13-25 The person may obtain a new license by submitting to reexamination
13-26 and complying with the requirements and procedures for obtaining an
13-27 original license. However, the board may renew without
14-1 reexamination an expired license of a person who was licensed in
14-2 this state, moved to another state, and is currently licensed and
14-3 has been in practice in the other state for the two years preceding
14-4 application. The person must pay to the board a fee that is equal
14-5 to the examination fee for the license.
14-6 (f) <(e)> The board shall notify each license holder in
14-7 writing of the pending license expiration not later than the 30th
14-8 day before the date on which the license expires.
14-9 (g) <(f)> The board shall establish a mandatory <may prepare
14-10 or approve> continuing education program <programs> for license
14-11 holders <and may require each license holder to participate in an
14-12 approved continuing education program in order to renew a license
14-13 issued under this Act>.
14-14 (h) The board of health by rule shall establish a minimum
14-15 number of hours of continuing education required to renew a license
14-16 under this Act. The board may assess the continuing education
14-17 needs of license holders and may require license holders to attend
14-18 continuing education courses specified by the board. The board of
14-19 health by rule shall develop a process to evaluate and approve
14-20 continuing education courses.
14-21 (i) The board shall identify the key factors for the
14-22 competent performance by a license holder of the license holder's
14-23 professional duties. The board shall implement a procedure to
14-24 assess a license holder's participation in continuing education
14-25 programs.
14-26 SECTION 15. Section 22, Licensed Marriage and Family
14-27 Therapist Act (Article 4512c-1, Vernon's Texas Civil Statutes), is
15-1 amended to read as follows:
15-2 Sec. 22. PROVISIONAL LICENSE BY ENDORSEMENT <RECIPROCITY>.
15-3 (a) The board may grant a provisional license to a <A> person who
15-4 is licensed or otherwise registered as a marriage and family
15-5 therapist by another state or other jurisdiction, whose
15-6 requirements for licensing or registration were, on the date of the
15-7 licensing or registration, substantially equal to those prescribed
15-8 by this Act<, is entitled to a license without examination on
15-9 submission of an application form and payment of an administrative
15-10 fee>. An applicant for a provisional license under this section
15-11 must:
15-12 (1) be licensed in good standing as a marriage and
15-13 family therapist in another state or jurisdiction that has
15-14 licensing requirements that are substantially equivalent to the
15-15 requirements of this Act;
15-16 (2) have passed a national or other examination
15-17 recognized by the board relating to marriage and family therapy;
15-18 and
15-19 (3) be sponsored by a person licensed by the board
15-20 under this Act with whom the provisional license holder may
15-21 practice under this section.
15-22 (b) An applicant for a provisional license may be excused
15-23 from the requirement of Subsection (a)(3) of this section if the
15-24 board determines that compliance with that subsection constitutes a
15-25 hardship to the applicant.
15-26 (c) A provisional license is valid until the date the board
15-27 approves or denies the provisional license holder's application for
16-1 a license. The board shall issue a license under this Act to the
16-2 holder of a provisional license under this section if:
16-3 (1) the provisional license holder passes the
16-4 examination required by Section 19 of this Act;
16-5 (2) the board verifies that the provisional license
16-6 holder has the academic and experience requirements for a license
16-7 under this Act; and
16-8 (3) the provisional license holder satisfies any other
16-9 license requirements under this Act.
16-10 (d) The board must complete the processing of a provisional
16-11 license holder's application for a license not later than the 180th
16-12 day after the date the provisional license is issued.
16-13 SECTION 16. Section 25, Licensed Marriage and Family
16-14 Therapist Act (Article 4512c-1, Vernon's Texas Civil Statutes), is
16-15 amended to read as follows:
16-16 Sec. 25. DENIAL, SUSPENSION, OR REVOCATION OF LICENSE; CIVIL
16-17 PENALTY. (a) The <After a hearing, the> board shall <may deny,>
16-18 suspend<,> or revoke a license, place on probation a person whose
16-19 license has been suspended, or reprimand <or otherwise discipline>
16-20 a license holder if <the applicant for license or> the license
16-21 holder has:
16-22 (1) been convicted of a felony or a misdemeanor
16-23 involving moral turpitude;
16-24 (2) obtained or attempted to obtain registration by
16-25 fraud or deception;
16-26 (3) used drugs or alcohol to an extent that affects
16-27 professional competence;
17-1 (4) been grossly negligent in performing professional
17-2 duties;
17-3 (5) been adjudicated mentally incompetent by a court
17-4 of competent jurisdiction;
17-5 (6) practiced in a manner detrimental to the public
17-6 health or welfare;
17-7 (7) advertised in a manner that tends to deceive or
17-8 defraud the public;
17-9 (8) had a license or certification revoked by a
17-10 licensing agency or by a certifying professional organization; or
17-11 (9) otherwise violated this Act or a rule or code of
17-12 ethics adopted under this Act.
17-13 (b) A person who violates this Act or a rule or order
17-14 adopted by the board of health under this Act is subject to a civil
17-15 penalty of $1,000 for each day of violation. At the request of the
17-16 board or department, the attorney general shall bring an action to
17-17 recover a civil penalty authorized under this subsection.
17-18 (c) If a license suspension is probated, the board may
17-19 require the license holder to:
17-20 (1) report regularly to the board on matters that are
17-21 the basis of the probation;
17-22 (2) limit practice to the areas prescribed by the
17-23 board; or
17-24 (3) continue or review continuing professional
17-25 education until the license holder attains a degree of skill
17-26 satisfactory to the board in those areas that are the basis of the
17-27 probation.
18-1 (d) A license holder is entitled to a hearing before the
18-2 State Office of Administrative Hearings before a sanction is
18-3 imposed under this section.
18-4 (e) The board of health by rule shall adopt a broad schedule
18-5 of sanctions for violations under this Act. The State Office of
18-6 Administrative Hearings shall use the schedule for any sanction
18-7 imposed as the result of a hearing conducted by that office.
18-8 SECTION 17. The Licensed Marriage and Family Therapist Act
18-9 (Article 4512c-1, Vernon's Texas Civil Statutes) is amended by
18-10 adding Section 25A to read as follows:
18-11 Sec. 25A. ADMINISTRATIVE PENALTY. (a) The commissioner of
18-12 health may impose an administrative penalty against a person
18-13 licensed or regulated under this Act who violates this Act or a
18-14 rule or order adopted by the board of health under this Act.
18-15 (b) The penalty for a violation may be in an amount not to
18-16 exceed $1,000. Each day a violation continues or occurs is a
18-17 separate violation for purposes of imposing a penalty.
18-18 (c) The amount of the penalty shall be based on:
18-19 (1) the seriousness of the violation, including the
18-20 nature, circumstances, extent, and gravity of any prohibited acts,
18-21 and the hazard or potential hazard created to the health, safety,
18-22 or economic welfare of the public;
18-23 (2) the economic harm to property or the environment
18-24 caused by the violation;
18-25 (3) the history of previous violations;
18-26 (4) the amount necessary to deter future violations;
18-27 (5) efforts to correct the violation; and
19-1 (6) any other matter that justice may require.
19-2 (d) If the commissioner of health determines that a
19-3 violation has occurred, the commissioner may issue to the board a
19-4 report that states the facts on which the determination is based
19-5 and the commissioner's recommendation on the imposition of a
19-6 penalty, including a recommendation on the amount of the penalty.
19-7 (e) Within 14 days after the date the report is issued, the
19-8 commissioner shall give written notice of the report to the person.
19-9 The notice may be given by certified mail. The notice must include
19-10 a brief summary of the alleged violation and a statement of the
19-11 amount of the recommended penalty and must inform the person that
19-12 the person has a right to a hearing on the occurrence of the
19-13 violation, the amount of the penalty, or both the occurrence of the
19-14 violation and the amount of the penalty.
19-15 (f) Within 20 days after the date the person receives the
19-16 notice, the person in writing may accept the determination and
19-17 recommended penalty of the commissioner or may make a written
19-18 request for a hearing on the occurrence of the violation, the
19-19 amount of the penalty, or both the occurrence of the violation and
19-20 the amount of the penalty.
19-21 (g) If the person accepts the determination and recommended
19-22 penalty of the commissioner, the board of health by order shall
19-23 approve the determination and impose the recommended penalty.
19-24 (h) If the person requests a hearing or fails to respond
19-25 timely to the notice, the department shall set a hearing and give
19-26 notice of the hearing to the person. The hearing shall be held by
19-27 a hearing examiner designated by the department. The hearing
20-1 examiner shall make findings of fact and conclusions of law and
20-2 promptly issue to the board a proposal for a decision about the
20-3 occurrence of the violation and the amount of a proposed penalty.
20-4 Based on the findings of fact, conclusions of law, and proposal for
20-5 a decision, the board of health by order may find that a violation
20-6 has occurred and impose a penalty or may find that no violation
20-7 occurred.
20-8 (i) The notice of the board of health's order given to the
20-9 person under the Administrative Procedure and Texas Register Act
20-10 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
20-11 subsequent amendments, must include a statement of the right of the
20-12 person to judicial review of the order.
20-13 (j) Within 30 days after the date the board of health's
20-14 order is final as provided by Section 16(c), Administrative
20-15 Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
20-16 Civil Statutes), and its subsequent amendments, the person shall:
20-17 (1) pay the amount of the penalty;
20-18 (2) pay the amount of the penalty and file a petition
20-19 for judicial review contesting the occurrence of the violation, the
20-20 amount of the penalty, or both the occurrence of the violation and
20-21 the amount of the penalty; or
20-22 (3) without paying the amount of the penalty, file a
20-23 petition for judicial review contesting the occurrence of the
20-24 violation, the amount of the penalty, or both the occurrence of the
20-25 violation and the amount of the penalty.
20-26 (k) Within the 30-day period, a person who acts under
20-27 Subsection (j)(3) of this section may:
21-1 (1) stay enforcement of the penalty by:
21-2 (A) paying the amount of the penalty to the
21-3 court for placement in an escrow account; or
21-4 (B) giving to the court a supersedeas bond that
21-5 is approved by the court for the amount of the penalty and that is
21-6 effective until all judicial review of the board of health's order
21-7 is final; or
21-8 (2) request the court to stay enforcement of the
21-9 penalty by:
21-10 (A) filing with the court a sworn affidavit of
21-11 the person stating that the person is financially unable to pay the
21-12 amount of the penalty and is financially unable to give the
21-13 supersedeas bond; and
21-14 (B) giving a copy of the affidavit to the
21-15 commissioner of health by certified mail.
21-16 (l) If the commissioner of health receives a copy of an
21-17 affidavit under Subsection (k)(2) of this section, the commissioner
21-18 may file with the court, within five days after the date the copy
21-19 is received, a contest to the affidavit. The court shall hold a
21-20 hearing on the facts alleged in the affidavit as soon as
21-21 practicable and shall stay the enforcement of the penalty on
21-22 finding that the alleged facts are true. The person who files an
21-23 affidavit has the burden of proving that the person is financially
21-24 unable to pay the amount of the penalty and to give a supersedeas
21-25 bond.
21-26 (m) If the person does not pay the amount of the penalty and
21-27 the enforcement of the penalty is not stayed, the commissioner of
22-1 health may refer the matter to the attorney general for collection
22-2 of the amount of the penalty.
22-3 (n) Judicial review of the order of the board of health:
22-4 (1) is instituted by filing a petition as provided by
22-5 Section 19, Administrative Procedure and Texas Register Act
22-6 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
22-7 subsequent amendments; and
22-8 (2) is under the substantial evidence rule.
22-9 (o) If the court sustains the occurrence of the violation,
22-10 the court may uphold or reduce the amount of the penalty and order
22-11 the person to pay the full or reduced amount of the penalty. If
22-12 the court does not sustain the occurrence of the violation, the
22-13 court shall order that no penalty is owed.
22-14 (p) When the judgment of the court becomes final, the court
22-15 shall proceed under this subsection. If the person paid the amount
22-16 of the penalty and if that amount is reduced or is not upheld by
22-17 the court, the court shall order that the appropriate amount plus
22-18 accrued interest be remitted to the person. The rate of the
22-19 interest is the rate charged on loans to depository institutions by
22-20 the New York Federal Reserve Bank, and the interest shall be paid
22-21 for the period beginning on the date the penalty was paid and
22-22 ending on the date the penalty is remitted. If the person gave a
22-23 supersedeas bond and if the amount of the penalty is not upheld by
22-24 the court, the court shall order the release of the bond. If the
22-25 person gave a supersedeas bond and if the amount of the penalty is
22-26 reduced, the court shall order the release of the bond after the
22-27 person pays the amount.
23-1 (q) A penalty collected under this section shall be remitted
23-2 to the comptroller for deposit in the general revenue fund.
23-3 (r) All proceedings under this section are subject to the
23-4 Administrative Procedure and Texas Register Act (Article 6252-13a,
23-5 Vernon's Texas Civil Statutes) and its subsequent amendments.
23-6 SECTION 18. The Licensed Marriage and Family Therapist Act
23-7 (Article 4512c-1, Vernon's Texas Civil Statutes) is amended by
23-8 adding Section 27A to read as follows:
23-9 Sec. 27A. COMPETITIVE BIDDING; ADVERTISING. (a) The board
23-10 of health may not adopt rules restricting competitive bidding or
23-11 advertising by a person regulated by the board except to prohibit
23-12 false, misleading, or deceptive practices by the person.
23-13 (b) The board of health may not include in its rules to
23-14 prohibit false, misleading, or deceptive practices by a person
23-15 regulated by the board a rule that:
23-16 (1) restricts the use of any medium for advertising;
23-17 (2) restricts the person's personal appearance or use
23-18 of the person's voice in an advertisement;
23-19 (3) relates to the size or duration of an
23-20 advertisement by the person; or
23-21 (4) restricts the person's advertisement under a trade
23-22 name.
23-23 SECTION 19. (a) The changes in law made by this Act to the
23-24 requirements for membership on the Texas State Board of Examiners
23-25 of Marriage and Family Therapists apply only to an appointment made
23-26 on or after the effective date of this Act and do not affect the
23-27 entitlement of a member serving on the board immediately before the
24-1 effective date of this Act to continue to hold office for the
24-2 remainder of the term for which the person was appointed.
24-3 (b) The changes in law made by this Act relating to a civil
24-4 or administrative penalty apply only to a violation of the Licensed
24-5 Marriage and Family Therapist Act (Article 4512c-1, Vernon's Texas
24-6 Civil Statutes) or a rule or order adopted by the Texas Board of
24-7 Health that occurs on or after the effective date of this Act. A
24-8 violation occurs on or after the effective date of this Act only if
24-9 each element of the violation occurs on or after that date. A
24-10 violation that occurs before the effective date of this Act is
24-11 governed by the law in effect on the date the violation occurred,
24-12 and the former law is continued in effect for this purpose.
24-13 SECTION 20. On and after January 1, 1994, the State Office
24-14 of Administrative Hearings shall assume responsibility for hearings
24-15 held with respect to contested cases arising under the Licensed
24-16 Marriage and Family Therapist Act (Article 4512c-1, Vernon's Texas
24-17 Civil Statutes) and its subsequent amendments. The Texas State
24-18 Board of Examiners of Marriage and Family Therapists and the chief
24-19 administrative law judge of the State Office of Administrative
24-20 Hearings may agree to transfer contested cases pending before the
24-21 board to the State Office of Administrative Hearings before January
24-22 1, 1994.
24-23 SECTION 21. The Texas Board of Health shall adopt rules
24-24 required by this Act not later than December 31, 1993.
24-25 SECTION 22. This Act takes effect September 1, 1993.
24-26 SECTION 23. The importance of this legislation and the
24-27 crowded condition of the calendars in both houses create an
25-1 emergency and an imperative public necessity that the
25-2 constitutional rule requiring bills to be read on three several
25-3 days in each house be suspended, and this rule is hereby suspended.