1-1 By: Parker S.B. No. 1425
1-2 (In the Senate - Filed April 26, 1993; April 27, 1993, read
1-3 first time and referred to Committee on Health and Human Services;
1-4 May 3, 1993, reported adversely, with favorable Committee
1-5 Substitute by the following vote: Yeas 6, Nays 0; May 3, 1993,
1-6 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 S.B. No. 1425 By: Moncrief
1-19 A BILL TO BE ENTITLED
1-20 AN ACT
1-21 relating to the regulation of marriage and family therapists and to
1-22 the continuation and operation of the Texas State Board of
1-23 Examiners of Marriage and Family Therapists; providing penalties.
1-24 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-25 SECTION 1. Subsection (b), Section 3, Licensed Marriage and
1-26 Family Therapist Act (Article 4512c-1, Vernon's Texas Civil
1-27 Statutes), is amended to read as follows:
1-28 (b) Appointments to the board shall be made without regard
1-29 to the race, color, disability <handicap>, sex, religion, age, or
1-30 national origin of the appointee.
1-31 SECTION 2. Section 4, Licensed Marriage and Family Therapist
1-32 Act (Article 4512c-1, Vernon's Texas Civil Statutes), is amended to
1-33 read as follows:
1-34 Sec. 4. Sunset provision. <(a)> The Texas State Board of
1-35 Examiners of Marriage and Family Therapists is subject to Chapter
1-36 325, Government Code (Texas Sunset Act). Unless continued in
1-37 existence as provided by that chapter, the board is abolished and
1-38 this Act expires September 1, 2005 <1993>.
1-39 <(b) The board shall cooperate with the Sunset Advisory
1-40 Commission in the commission's review of those agencies that
1-41 license or regulate mental health professionals and will be
1-42 reviewed for the Regular Session of the 73rd Legislature in 1993.
1-43 The board shall assist the Sunset Advisory Commission in
1-44 determining the extent to which the agencies that license or
1-45 regulate mental health professionals should be combined into a
1-46 single agency.>
1-47 SECTION 3. Section 9, Licensed Marriage and Family Therapist
1-48 Act (Article 4512c-1, Vernon's Texas Civil Statutes), is amended to
1-49 read as follows:
1-50 Sec. 9. Restrictions on appointment, membership, and
1-51 employment. (a) A member of the board or an employee of the
1-52 department who performs functions for the board may not<:>
1-53 <(1) be an officer, employee, or paid consultant of a
1-54 trade association in the field of marriage and family therapy or a
1-55 related mental health field;>
1-56 <(2) be related within the second degree by affinity
1-57 or within the third degree by consanguinity to a person who is an
1-58 officer, employee, or paid consultant of a trade association in the
1-59 field of marriage and family therapy or a related mental health
1-60 field; or>
1-61 <(3)> communicate directly or indirectly with a party
1-62 or the party's representative to a proceeding pending before the
1-63 board if the member or employee is assigned to make a decision, a
1-64 finding of fact, or a conclusion of law in the proceeding, unless
1-65 notice and an opportunity to participate are given to each party to
1-66 the proceeding.
1-67 (b) An officer, employee, or paid consultant of a Texas
1-68 trade association in the field of health care may not be a member
2-1 or employee of the board who is exempt from the state's position
2-2 classification plan or is compensated at or above the amount
2-3 prescribed by the General Appropriations Act for step 1, salary
2-4 group 17, of the position classification salary schedule.
2-5 (c) A person who is the spouse of an officer, manager, or
2-6 paid consultant of a Texas trade association in the field of health
2-7 care may not be a board member and may not be an employee of the
2-8 board who is exempt from the state's position classification plan
2-9 or is compensated at or above the amount prescribed by the General
2-10 Appropriations Act for step 1, salary group 17, of the position
2-11 classification salary schedule.
2-12 (d) For the purposes of this section, a Texas trade
2-13 association is a nonprofit, cooperative, and voluntarily joined
2-14 association of business or professional competitors in this state
2-15 designed to assist its members and its industry or profession in
2-16 dealing with mutual business or professional problems and in
2-17 promoting their common interest.
2-18 (e) A person is not eligible for appointment as a public
2-19 member of the board if the person or the person's spouse:
2-20 (1) is registered, certified, or licensed by an
2-21 occupational regulatory agency in the field of health care;
2-22 (2) is employed by or participates in the management
2-23 of a business entity or other organization regulated by the board
2-24 or receiving funds from the board;
2-25 (3) owns or controls, directly or indirectly, more
2-26 than a 10 percent interest in a business entity or other
2-27 organization regulated by the board or receiving funds from the
2-28 board; or
2-29 (4) uses or receives a substantial amount of tangible
2-30 goods, services, or funds from the board, other than compensation
2-31 or reimbursement authorized by law for board membership,
2-32 attendance, or expenses.
2-33 (f) <A public member of the board or the spouse of a public
2-34 member may not have been or be related to a person within the
2-35 second degree by affinity or the third degree by consanguinity who
2-36 has, except as a consumer, a financial interest in the field of
2-37 marriage and family therapy or a related mental health field.>
2-38 <(c)> A person may not serve as a member of the board or act
2-39 as general counsel to the board if the person is required to
2-40 register as a lobbyist under Chapter 305, Government Code, because
2-41 of the person's activities for compensation on behalf of a
2-42 profession related to the operation of the board.
2-43 SECTION 4. Section 11, Licensed Marriage and Family
2-44 Therapist Act (Article 4512c-1, Vernon's Texas Civil Statutes), is
2-45 amended by amending Subsections (b) and (c) and adding Subsections
2-46 (d) through (h) to read as follows:
2-47 (b) The board shall keep an information file about each
2-48 complaint filed with the board. The board's information file shall
2-49 be kept current and contain a record for each complaint of:
2-50 (1) all persons contacted in relation to the
2-51 complaint;
2-52 (2) a summary of findings made at each step of the
2-53 complaint process;
2-54 (3) an explanation of the legal basis and reason for a
2-55 complaint that is dismissed; and
2-56 (4) other relevant information <that the board has
2-57 authority to resolve>.
2-58 (c) If a written complaint is filed with the board that the
2-59 board has authority to resolve, the board, at least quarterly and
2-60 until final disposition of the complaint, shall notify the parties
2-61 to the complaint of the status of the complaint unless notice would
2-62 jeopardize an undercover investigation.
2-63 (d) The board of health by rule shall adopt a form to
2-64 standardize information concerning complaints made to the board.
2-65 The board of health by rule shall prescribe information to be
2-66 provided to a person when the person files a complaint with the
2-67 board.
2-68 (e) The board shall provide reasonable assistance to a
2-69 person who wishes to file a complaint with the board.
2-70 (f) <(c)> The board shall develop and implement policies
3-1 that provide the public with a reasonable opportunity to appear
3-2 before the board and to speak on any issue under the jurisdiction
3-3 of the board.
3-4 (g) The board of health by rule shall establish methods by
3-5 which consumers and service recipients are notified of the name,
3-6 mailing address, and telephone number of the board for the purpose
3-7 of directing complaints to the board. The board of health may
3-8 provide for that notification:
3-9 (1) on each registration form, application, or written
3-10 contract for services of an individual or entity regulated by the
3-11 board;
3-12 (2) on a sign prominently displayed in the place of
3-13 business of each individual or entity regulated by the board; or
3-14 (3) in a bill for service provided by an individual or
3-15 entity regulated by the board.
3-16 (h) The board shall list along with its regular telephone
3-17 number the toll-free telephone number that may be called to present
3-18 a complaint about a health professional if the toll-free number is
3-19 established under other state law.
3-20 SECTION 5. The Licensed Marriage and Family Therapist Act
3-21 (Article 4512c-1, Vernon's Texas Civil Statutes) is amended by
3-22 adding Sections 11A, 11B, and 11C to read as follows:
3-23 Sec. 11A. COMPLAINT INVESTIGATION AND DISPOSITION. (a) The
3-24 board of health shall adopt rules concerning the investigation of a
3-25 complaint filed with the board. The rules adopted under this
3-26 subsection shall:
3-27 (1) distinguish between categories of complaints;
3-28 (2) ensure that complaints are not dismissed without
3-29 appropriate consideration;
3-30 (3) require that the board be advised of a complaint
3-31 that is dismissed and that a letter be sent to the person who filed
3-32 the complaint explaining the action taken on the dismissed
3-33 complaint;
3-34 (4) ensure that the person who filed the complaint has
3-35 an opportunity to explain the allegations made in the complaint;
3-36 and
3-37 (5) prescribe guidelines concerning the categories of
3-38 complaints that require the use of a private investigator and the
3-39 procedures for the board to obtain the services of a private
3-40 investigator.
3-41 (b) The board shall dispose of all complaints in a timely
3-42 manner. The board shall establish a schedule for conducting each
3-43 phase of a complaint that is under the control of the board not
3-44 later than the 30th day after the date the complaint is received by
3-45 the board. The schedule shall be kept in the information file for
3-46 the complaint and all parties shall be notified of the projected
3-47 time requirements for pursuing the complaint. A change in the
3-48 schedule must be noted in the complaint information file and all
3-49 parties to the complaint must be notified not later than the
3-50 seventh day after the date the change is made.
3-51 (c) The executive director of the board shall notify the
3-52 board of a complaint that extends beyond the time prescribed by the
3-53 board for resolving the complaint so that the board may take
3-54 necessary action on the complaint.
3-55 Sec. 11B. INFORMAL PROCEEDINGS. (a) The board of health by
3-56 rule shall adopt procedures governing:
3-57 (1) informal disposition of a contested case under
3-58 Section 13(e), Administrative Procedure and Texas Register Act
3-59 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
3-60 subsequent amendments; and
3-61 (2) informal proceedings held in compliance with
3-62 Section 18(c), Administrative Procedure and Texas Register Act
3-63 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
3-64 subsequent amendments.
3-65 (b) Rules adopted under this section must provide the
3-66 complainant and the license holder an opportunity to be heard and
3-67 must require the presence of an attorney to advise the board or
3-68 board's employees. The attorney must be a member of the board's
3-69 legal staff if the board has a legal staff. If the board does not
3-70 have a legal staff, the attorney must be an employee of the office
4-1 of the attorney general.
4-2 Sec. 11C. MONITORING OF LICENSE HOLDER. The board of health
4-3 by rule shall develop a system for monitoring license holders'
4-4 compliance with the requirements of this Act. Rules adopted under
4-5 this section shall include procedures for monitoring a license
4-6 holder who is ordered by the board to perform certain acts to
4-7 ascertain that the license holder performs the required acts and to
4-8 identify and monitor license holders who represent a risk to the
4-9 public.
4-10 SECTION 6. Subsections (a), (b), and (c), Section 12,
4-11 Licensed Marriage and Family Therapist Act (Article 4512c-1,
4-12 Vernon's Texas Civil Statutes), are amended to read as follows:
4-13 (a) The board of health shall by rule establish reasonable
4-14 and necessary <set> fees so that the fees, in the aggregate,
4-15 produce sufficient revenue to cover the cost of administering <for
4-16 licenses, license renewals, examinations, and all other
4-17 administrative expenses under> this Act.
4-18 (b) The fees set by the board of health may be adjusted so
4-19 that the total fees collected are sufficient to meet the expenses
4-20 of administering this Act. The board of health may not set a fee
4-21 for an amount less than the amount of that fee on September 1, 1993
4-22 <The board of health shall set the fees in amounts that are
4-23 reasonable and necessary to cover administrative costs>.
4-24 (c) The marriage and family therapists licensing account is
4-25 created in the General Revenue Fund and may be used only by the
4-26 board of health and the department in the administration of this
4-27 Act. All money paid to <Fees received by> the board of health
4-28 under this Act shall be deposited in the General Revenue Fund to
4-29 the credit of the account.
4-30 SECTION 7. Section 14, Licensed Marriage and Family
4-31 Therapist Act (Article 4512c-1, Vernon's Texas Civil Statutes), is
4-32 amended by adding Subsection (d) to read as follows:
4-33 (d) The board shall develop and implement policies that
4-34 clearly define the respective responsibilities of the board and the
4-35 staff of the board.
4-36 SECTION 8. The Licensed Marriage and Family Therapist Act
4-37 (Article 4512c-1, Vernon's Texas Civil Statutes) is amended by
4-38 adding Section 14A to read as follows:
4-39 Sec. 14A. PERSONNEL POLICIES. (a) The executive director
4-40 or the executive director's designee shall develop an intraagency
4-41 career ladder program. The program shall require intraagency
4-42 posting of all non-entry-level positions concurrently with any
4-43 public posting.
4-44 (b) The executive director or the executive director's
4-45 designee shall develop a system of annual performance evaluations
4-46 based on measurable job tasks. All merit pay for board employees
4-47 must be based on the system established under this subsection.
4-48 SECTION 9. The Licensed Marriage and Family Therapist Act
4-49 (Article 4512c-1, Vernon's Texas Civil Statutes) is amended by
4-50 adding Section 14B to read as follows:
4-51 Sec. 14B. EQUAL EMPLOYMENT OPPORTUNITY POLICIES. (a) The
4-52 executive director or the executive director's designee shall
4-53 prepare and maintain a written policy statement to ensure
4-54 implementation of a program of equal employment opportunity under
4-55 which all personnel transactions are made without regard to race,
4-56 color, disability, sex, religion, age, or national origin. The
4-57 policy statement must include:
4-58 (1) personnel policies, including policies relating to
4-59 recruitment, evaluation, selection, application, training, and
4-60 promotion of personnel that are in compliance with the Commission
4-61 on Human Rights Act (Article 5221k, Vernon's Texas Civil Statutes)
4-62 and its subsequent amendments;
4-63 (2) a comprehensive analysis of the board work force
4-64 that meets federal and state guidelines;
4-65 (3) procedures by which a determination can be made of
4-66 significant underutilization in the board work force of all persons
4-67 for whom federal or state guidelines encourage a more equitable
4-68 balance; and
4-69 (4) reasonable methods to appropriately address those
4-70 areas of underutilization.
5-1 (b) A policy statement prepared under Subsection (a) of this
5-2 section must cover an annual period, be updated annually, be
5-3 reviewed by the Commission on Human Rights for compliance with
5-4 Subsection (a)(1) of this section, and be filed with the governor's
5-5 office.
5-6 (c) The governor's office shall deliver a biennial report to
5-7 the legislature based on the information received under Subsection
5-8 (b) of this section. The report may be made separately or as part
5-9 of other biennial reports to the legislature.
5-10 SECTION 10. The Licensed Marriage and Family Therapist Act
5-11 (Article 4512c-1, Vernon's Texas Civil Statutes) is amended by
5-12 adding Section 14C to read as follows:
5-13 Sec. 14C. PROGRAM ACCESSIBILITY. The board shall prepare
5-14 and maintain a written plan that describes how a person who does
5-15 not speak English can be provided reasonable access to the board's
5-16 programs. The board shall also comply with federal and state laws
5-17 for program and facility accessibility.
5-18 SECTION 11. The Licensed Marriage and Family Therapist Act
5-19 (Article 4512c-1, Vernon's Texas Civil Statutes) is amended by
5-20 adding Sections 14D and 14E to read as follows:
5-21 Sec. 14D. TRAINING; STANDARDS OF CONDUCT INFORMATION.
5-22 (a) Each board member shall comply with the board member training
5-23 requirements established by any other state agency that is given
5-24 authority to establish the requirements for the board.
5-25 (b) The board shall provide to its members and employees, as
5-26 often as necessary, information regarding their qualifications for
5-27 office or employment under this Act and their responsibilities
5-28 under applicable laws relating to standards of conduct for state
5-29 officers or employees.
5-30 Sec. 14E. TRAINING AND GUIDELINES FOR MEMBERS OF THE BOARD.
5-31 (a) The board shall establish a training program for the members
5-32 of the board.
5-33 (b) Before a member of the board may assume the member's
5-34 duties, the member must complete at least one course of the
5-35 training program established under this section, and before the
5-36 member may be confirmed by the senate, the member must pass an
5-37 examination given in conjunction with the attorney general on
5-38 subjects described by Subdivisions (7), (8), and (9) of Subsection
5-39 (c) of this section.
5-40 (c) A training program established under this section shall
5-41 provide information to a participant regarding:
5-42 (1) the enabling legislation that created the board to
5-43 which the member is appointed;
5-44 (2) the programs operated by the board;
5-45 (3) the role and functions of the board;
5-46 (4) the rules of the board with an emphasis on the
5-47 rules that relate to disciplinary and investigatory authority;
5-48 (5) the current budget for the board;
5-49 (6) the results of the most recent formal audit of the
5-50 board;
5-51 (7) the requirements of the:
5-52 (A) open meetings law, Chapter 271, Acts of the
5-53 60th Legislature, Regular Session, 1967 (Article 6252-17, Vernon's
5-54 Texas Civil Statutes), and its subsequent amendments;
5-55 (B) open records law, Chapter 424, Acts of the
5-56 63rd Legislature, Regular Session, 1973 (Article 6252-17a, Vernon's
5-57 Texas Civil Statutes), and its subsequent amendments; and
5-58 (C) Administrative Procedure and Texas Register
5-59 Act (Article 6252-13a, Vernon's Texas Civil Statutes) and its
5-60 subsequent amendments;
5-61 (8) the requirements of the conflict of interest laws
5-62 and other laws relating to public officials; and
5-63 (9) any applicable ethics policies adopted by the
5-64 board or the Texas Ethics Commission.
5-65 (d) In developing the training requirements provided for in
5-66 this section, the board shall consult with the governor's office,
5-67 the attorney general's office, and the Texas Ethics Commission.
5-68 (e) In the event that another state agency or entity is
5-69 given the authority to establish the training requirements, the
5-70 board shall allow that training in lieu of developing its own
6-1 program.
6-2 SECTION 12. Subsections (a) and (d), Section 19, Licensed
6-3 Marriage and Family Therapist Act (Article 4512c-1, Vernon's Texas
6-4 Civil Statutes), are amended to read as follows:
6-5 (a) Unless exempted from the examination requirement under
6-6 Section 30 of this Act or by a determination of the board based on
6-7 the applicant's education and professional experience, each
6-8 applicant for a license under this Act must pass an examination
6-9 prescribed by the board. The board shall have the written portion
6-10 of the examination, if any, validated by an independent testing
6-11 professional and approved by the commissioner of health. The
6-12 examination may be composed of:
6-13 (1) a written examination;
6-14 (2) a field examination, through questionnaires
6-15 answered by the applicant's instructors, employers, supervisors, or
6-16 other persons who are competent in the judgment of the board to
6-17 assess the applicant's professional ability, and that may include
6-18 written case studies and taped interviews;
6-19 (3) an oral examination; or
6-20 (4) any combination of those examinations.
6-21 (d) Unless the examination is graded or reviewed by a
6-22 national testing service, the board shall notify each examinee of
6-23 the results of the examination not later than the 30th day after
6-24 the day on which a licensing examination is administered under this
6-25 Act <30 days after the examination date>. However, if <If> the
6-26 examination is <so> graded or reviewed by a national testing
6-27 service, the board shall notify each examinee of the results not
6-28 later than the 14th day <15 days> after the date on which the board
6-29 receives the results from the national testing service. If the
6-30 notice of examination results graded or reviewed by a national
6-31 testing service will be delayed for more than 90 days after the
6-32 examination date, the board shall notify each examinee of the
6-33 reason for the delay before <not later than> the 90th day <after
6-34 the examination date>.
6-35 SECTION 13. Section 20, Licensed Marriage and Family
6-36 Therapist Act (Article 4512c-1, Vernon's Texas Civil Statutes), is
6-37 amended by adding Subsection (c) to read as follows:
6-38 (c) The board of health by rule may provide for the issuance
6-39 of a temporary license. Rules adopted under this subsection shall
6-40 include a time limit for a temporary license.
6-41 SECTION 14. Section 21, Licensed Marriage and Family
6-42 Therapist Act (Article 4512c-1, Vernon's Texas Civil Statutes), is
6-43 amended to read as follows:
6-44 Sec. 21. License renewal. (a) A license issued under this
6-45 Act is subject to annual renewal. The board shall adopt a system
6-46 under which licenses expire on various dates during the year.
6-47 (b) A license holder may renew an unexpired license by
6-48 paying to the board <the renewal fee> before the expiration date of
6-49 the license the required renewal fee.
6-50 (c) If a person's license has been expired for <less than>
6-51 90 days or less, the person may renew the license by paying to the
6-52 board the required renewal fee and a fee that is one-half of the
6-53 examination fee for the license <the unpaid renewal fees plus a
6-54 late renewal fee in an amount determined by the board>.
6-55 (d) If a person's license has been expired for longer than
6-56 90 days but less than one year, the person may renew the license by
6-57 paying to the board all unpaid renewal fees and a fee that is equal
6-58 to the examination fee for the license.
6-59 (e) If the person's license has been expired for one year or
6-60 longer <90 days or more>, the person may not renew the license.
6-61 The person may obtain a new license by submitting to reexamination
6-62 and complying with the requirements and procedures for obtaining an
6-63 original license. However, the board may renew without
6-64 reexamination an expired license of a person who was licensed in
6-65 this state, moved to another state, and is currently licensed and
6-66 has been in practice in the other state for the two years preceding
6-67 application. The person must pay to the board a fee that is equal
6-68 to the examination fee for the license.
6-69 (f) <(e)> The board shall notify each license holder in
6-70 writing of the pending license expiration not later than the 30th
7-1 day before the date on which the license expires.
7-2 (g) <(f)> The board shall establish a mandatory <may prepare
7-3 or approve> continuing education program <programs> for license
7-4 holders <and may require each license holder to participate in an
7-5 approved continuing education program in order to renew a license
7-6 issued under this Act>.
7-7 (h) The board of health by rule shall establish a minimum
7-8 number of hours of continuing education required to renew a license
7-9 under this Act. The board may assess the continuing education
7-10 needs of license holders and may require license holders to attend
7-11 continuing education courses specified by the board. The board of
7-12 health by rule shall develop a process to evaluate and approve
7-13 continuing education courses.
7-14 (i) The board shall identify the key factors for the
7-15 competent performance by a license holder of the license holder's
7-16 professional duties. The board shall implement a procedure to
7-17 assess a license holder's participation in continuing education
7-18 programs.
7-19 SECTION 15. Section 22, Licensed Marriage and Family
7-20 Therapist Act (Article 4512c-1, Vernon's Texas Civil Statutes), is
7-21 amended to read as follows:
7-22 Sec. 22. PROVISIONAL LICENSE BY ENDORSEMENT <RECIPROCITY>.
7-23 (a) The board may grant a provisional license to a <A> person who
7-24 is licensed or otherwise registered as a marriage and family
7-25 therapist by another state or other jurisdiction, whose
7-26 requirements for licensing or registration were, on the date of the
7-27 licensing or registration, substantially equal to those prescribed
7-28 by this Act<, is entitled to a license without examination on
7-29 submission of an application form and payment of an administrative
7-30 fee>. An applicant for a provisional license under this section
7-31 must:
7-32 (1) be licensed in good standing as a marriage and
7-33 family therapist in another state or jurisdiction that has
7-34 licensing requirements that are substantially equivalent to the
7-35 requirements of this Act;
7-36 (2) have passed a national or other examination
7-37 recognized by the board relating to marriage and family therapy;
7-38 and
7-39 (3) be sponsored by a person licensed by the board
7-40 under this Act with whom the provisional license holder may
7-41 practice under this section.
7-42 (b) An applicant for a provisional license may be excused
7-43 from the requirement of Subsection (a)(3) of this section if the
7-44 board determines that compliance with that subsection constitutes a
7-45 hardship to the applicant.
7-46 (c) A provisional license is valid until the date the board
7-47 approves or denies the provisional license holder's application for
7-48 a license. The board shall issue a license under this Act to the
7-49 holder of a provisional license under this section if:
7-50 (1) the provisional license holder passes the
7-51 examination required by Section 19 of this Act;
7-52 (2) the board verifies that the provisional license
7-53 holder has the academic and experience requirements for a license
7-54 under this Act; and
7-55 (3) the provisional license holder satisfies any other
7-56 license requirements under this Act.
7-57 (d) The board must complete the processing of a provisional
7-58 license holder's application for a license not later than the 180th
7-59 day after the date the provisional license is issued.
7-60 SECTION 16. Section 25, Licensed Marriage and Family
7-61 Therapist Act (Article 4512c-1, Vernon's Texas Civil Statutes), is
7-62 amended to read as follows:
7-63 Sec. 25. DENIAL, SUSPENSION, OR REVOCATION OF LICENSE; CIVIL
7-64 PENALTY. (a) The <After a hearing, the> board shall <may deny,>
7-65 suspend<,> or revoke a license, place on probation a person whose
7-66 license has been suspended, or reprimand <or otherwise discipline>
7-67 a license holder if <the applicant for license or> the license
7-68 holder has:
7-69 (1) been convicted of a felony or a misdemeanor
7-70 involving moral turpitude;
8-1 (2) obtained or attempted to obtain registration by
8-2 fraud or deception;
8-3 (3) used drugs or alcohol to an extent that affects
8-4 professional competence;
8-5 (4) been grossly negligent in performing professional
8-6 duties;
8-7 (5) been adjudicated mentally incompetent by a court
8-8 of competent jurisdiction;
8-9 (6) practiced in a manner detrimental to the public
8-10 health or welfare;
8-11 (7) advertised in a manner that tends to deceive or
8-12 defraud the public;
8-13 (8) had a license or certification revoked by a
8-14 licensing agency or by a certifying professional organization; or
8-15 (9) otherwise violated this Act or a rule or code of
8-16 ethics adopted under this Act.
8-17 (b) A person who violates this Act or a rule or order
8-18 adopted by the board of health under this Act is subject to a civil
8-19 penalty of $1,000 for each day of violation. At the request of the
8-20 board or department, the attorney general shall bring an action to
8-21 recover a civil penalty authorized under this subsection.
8-22 (c) If a license suspension is probated, the board may
8-23 require the license holder to:
8-24 (1) report regularly to the board on matters that are
8-25 the basis of the probation;
8-26 (2) limit practice to the areas prescribed by the
8-27 board; or
8-28 (3) continue or review continuing professional
8-29 education until the license holder attains a degree of skill
8-30 satisfactory to the board in those areas that are the basis of the
8-31 probation.
8-32 (d) A license holder is entitled to a hearing before the
8-33 State Office of Administrative Hearings before a sanction is
8-34 imposed under this section.
8-35 (e) The board of health by rule shall adopt a broad schedule
8-36 of sanctions for violations under this Act. The State Office of
8-37 Administrative Hearings shall use the schedule for any sanction
8-38 imposed as the result of a hearing conducted by that office.
8-39 SECTION 17. The Licensed Marriage and Family Therapist Act
8-40 (Article 4512c-1, Vernon's Texas Civil Statutes) is amended by
8-41 adding Section 25A to read as follows:
8-42 Sec. 25A. ADMINISTRATIVE PENALTY. (a) The commissioner of
8-43 health may impose an administrative penalty against a person
8-44 licensed or regulated under this Act who violates this Act or a
8-45 rule or order adopted by the board of health under this Act.
8-46 (b) The penalty for a violation may be in an amount not to
8-47 exceed $1,000. Each day a violation continues or occurs is a
8-48 separate violation for purposes of imposing a penalty.
8-49 (c) The amount of the penalty shall be based on:
8-50 (1) the seriousness of the violation, including the
8-51 nature, circumstances, extent, and gravity of any prohibited acts,
8-52 and the hazard or potential hazard created to the health, safety,
8-53 or economic welfare of the public;
8-54 (2) the economic harm to property or the environment
8-55 caused by the violation;
8-56 (3) the history of previous violations;
8-57 (4) the amount necessary to deter future violations;
8-58 (5) efforts to correct the violation; and
8-59 (6) any other matter that justice may require.
8-60 (d) If the commissioner of health determines that a
8-61 violation has occurred, the commissioner may issue to the board a
8-62 report that states the facts on which the determination is based
8-63 and the commissioner's recommendation on the imposition of a
8-64 penalty, including a recommendation on the amount of the penalty.
8-65 (e) Within 14 days after the date the report is issued, the
8-66 commissioner shall give written notice of the report to the person.
8-67 The notice may be given by certified mail. The notice must include
8-68 a brief summary of the alleged violation and a statement of the
8-69 amount of the recommended penalty and must inform the person that
8-70 the person has a right to a hearing on the occurrence of the
9-1 violation, the amount of the penalty, or both the occurrence of the
9-2 violation and the amount of the penalty.
9-3 (f) Within 20 days after the date the person receives the
9-4 notice, the person in writing may accept the determination and
9-5 recommended penalty of the commissioner or may make a written
9-6 request for a hearing on the occurrence of the violation, the
9-7 amount of the penalty, or both the occurrence of the violation and
9-8 the amount of the penalty.
9-9 (g) If the person accepts the determination and recommended
9-10 penalty of the commissioner, the board of health by order shall
9-11 approve the determination and impose the recommended penalty.
9-12 (h) If the person requests a hearing or fails to respond
9-13 timely to the notice, the department shall set a hearing and give
9-14 notice of the hearing to the person. The hearing shall be held by
9-15 a hearing examiner designated by the department. The hearing
9-16 examiner shall make findings of fact and conclusions of law and
9-17 promptly issue to the board a proposal for a decision about the
9-18 occurrence of the violation and the amount of a proposed penalty.
9-19 Based on the findings of fact, conclusions of law, and proposal for
9-20 a decision, the board of health by order may find that a violation
9-21 has occurred and impose a penalty or may find that no violation
9-22 occurred.
9-23 (i) The notice of the board of health's order given to the
9-24 person under the Administrative Procedure and Texas Register Act
9-25 (Article 6252-13a, Vernon's Texas Civil Statutes) and its
9-26 subsequent amendments must include a statement of the right of the
9-27 person to judicial review of the order.
9-28 (j) Within 30 days after the date the board of health's
9-29 order is final as provided by Section 16(c), Administrative
9-30 Procedure and Texas Register Act (Article 6252-13a, Vernon's Texas
9-31 Civil Statutes), and its subsequent amendments, the person shall:
9-32 (1) pay the amount of the penalty;
9-33 (2) pay the amount of the penalty and file a petition
9-34 for judicial review contesting the occurrence of the violation, the
9-35 amount of the penalty, or both the occurrence of the violation and
9-36 the amount of the penalty; or
9-37 (3) without paying the amount of the penalty, file a
9-38 petition for judicial review contesting the occurrence of the
9-39 violation, the amount of the penalty, or both the occurrence of the
9-40 violation and the amount of the penalty.
9-41 (k) Within the 30-day period, a person who acts under
9-42 Subsection (j)(3) of this section may:
9-43 (1) stay enforcement of the penalty by:
9-44 (A) paying the amount of the penalty to the
9-45 court for placement in an escrow account; or
9-46 (B) giving to the court a supersedeas bond that
9-47 is approved by the court for the amount of the penalty and that is
9-48 effective until all judicial review of the board of health's order
9-49 is final; or
9-50 (2) request the court to stay enforcement of the
9-51 penalty by:
9-52 (A) filing with the court a sworn affidavit of
9-53 the person stating that the person is financially unable to pay the
9-54 amount of the penalty and is financially unable to give the
9-55 supersedeas bond; and
9-56 (B) giving a copy of the affidavit to the
9-57 commissioner of health by certified mail.
9-58 (l) If the commissioner of health receives a copy of an
9-59 affidavit under Subsection (k)(2) of this section, the commissioner
9-60 may file with the court, within five days after the date the copy
9-61 is received, a contest to the affidavit. The court shall hold a
9-62 hearing on the facts alleged in the affidavit as soon as
9-63 practicable and shall stay the enforcement of the penalty on
9-64 finding that the alleged facts are true. The person who files an
9-65 affidavit has the burden of proving that the person is financially
9-66 unable to pay the amount of the penalty and to give a supersedeas
9-67 bond.
9-68 (m) If the person does not pay the amount of the penalty and
9-69 the enforcement of the penalty is not stayed, the commissioner of
9-70 health may refer the matter to the attorney general for collection
10-1 of the amount of the penalty.
10-2 (n) Judicial review of the order of the board of health:
10-3 (1) is instituted by filing a petition as provided by
10-4 Section 19, Administrative Procedure and Texas Register Act
10-5 (Article 6252-13a, Vernon's Texas Civil Statutes), and its
10-6 subsequent amendments; and
10-7 (2) is under the substantial evidence rule.
10-8 (o) If the court sustains the occurrence of the violation,
10-9 the court may uphold or reduce the amount of the penalty and order
10-10 the person to pay the full or reduced amount of the penalty. If
10-11 the court does not sustain the occurrence of the violation, the
10-12 court shall order that no penalty is owed.
10-13 (p) When the judgment of the court becomes final, the court
10-14 shall proceed under this subsection. If the person paid the amount
10-15 of the penalty and if that amount is reduced or is not upheld by
10-16 the court, the court shall order that the appropriate amount plus
10-17 accrued interest be remitted to the person. The rate of the
10-18 interest is the rate charged on loans to depository institutions by
10-19 the New York Federal Reserve Bank, and the interest shall be paid
10-20 for the period beginning on the date the penalty was paid and
10-21 ending on the date the penalty is remitted. If the person gave a
10-22 supersedeas bond and if the amount of the penalty is not upheld by
10-23 the court, the court shall order the release of the bond. If the
10-24 person gave a supersedeas bond and if the amount of the penalty is
10-25 reduced, the court shall order the release of the bond after the
10-26 person pays the amount.
10-27 (q) A penalty collected under this section shall be remitted
10-28 to the comptroller for deposit in the general revenue fund.
10-29 (r) All proceedings under this section are subject to the
10-30 Administrative Procedure and Texas Register Act (Article 6252-13a,
10-31 Vernon's Texas Civil Statutes) and its subsequent amendments.
10-32 SECTION 18. The Licensed Marriage and Family Therapist Act
10-33 (Article 4512c-1, Vernon's Texas Civil Statutes) is amended by
10-34 adding Section 27A to read as follows:
10-35 Sec. 27A. COMPETITIVE BIDDING; ADVERTISING. (a) The board
10-36 of health may not adopt rules restricting competitive bidding or
10-37 advertising by a person regulated by the board except to prohibit
10-38 false, misleading, or deceptive practices by the person.
10-39 (b) The board of health may not include in its rules to
10-40 prohibit false, misleading, or deceptive practices by a person
10-41 regulated by the board a rule that:
10-42 (1) restricts the use of any medium for advertising;
10-43 (2) restricts the person's personal appearance or use
10-44 of the person's voice in an advertisement;
10-45 (3) relates to the size or duration of an
10-46 advertisement by the person; or
10-47 (4) restricts the person's advertisement under a trade
10-48 name.
10-49 SECTION 19. (a) The changes in law made by this Act to the
10-50 requirements for membership on the Texas State Board of Examiners
10-51 of Marriage and Family Therapists apply only to an appointment made
10-52 on or after the effective date of this Act and do not affect the
10-53 entitlement of a member serving on the board immediately before the
10-54 effective date of this Act to continue to hold office for the
10-55 remainder of the term for which the person was appointed.
10-56 (b) The changes in law made by this Act relating to a civil
10-57 or administrative penalty apply only to a violation of the Licensed
10-58 Marriage and Family Therapist Act (Article 4512c-1, Vernon's Texas
10-59 Civil Statutes) or a rule or order adopted by the Texas Board of
10-60 Health that occurs on or after the effective date of this Act. A
10-61 violation occurs on or after the effective date of this Act only if
10-62 each element of the violation occurs on or after that date. A
10-63 violation that occurs before the effective date of this Act is
10-64 governed by the law in effect on the date the violation occurred,
10-65 and the former law is continued in effect for this purpose.
10-66 SECTION 20. On and after January 1, 1994, the State Office
10-67 of Administrative Hearings shall assume responsibility for hearings
10-68 held with respect to contested cases arising under the Licensed
10-69 Marriage and Family Therapist Act (Article 4512c-1, Vernon's Texas
10-70 Civil Statutes) and its subsequent amendments. The Texas State
11-1 Board of Examiners of Marriage and Family Therapists and the chief
11-2 administrative law judge of the State Office of Administrative
11-3 Hearings may agree to transfer contested cases pending before the
11-4 board to the State Office of Administrative Hearings before January
11-5 1, 1994.
11-6 SECTION 21. The Texas Board of Health shall adopt rules
11-7 required by this Act not later than December 31, 1993.
11-8 SECTION 22. This Act takes effect September 1, 1993.
11-9 SECTION 23. The importance of this legislation and the
11-10 crowded condition of the calendars in both houses create an
11-11 emergency and an imperative public necessity that the
11-12 constitutional rule requiring bills to be read on three several
11-13 days in each house be suspended, and this rule is hereby suspended.
11-14 * * * * *
11-15 Austin,
11-16 Texas
11-17 May 3, 1993
11-18 Hon. Bob Bullock
11-19 President of the Senate
11-20 Sir:
11-21 We, your Committee on Health and Human Services to which was
11-22 referred S.B. No. 1425, have had the same under consideration, and
11-23 I am instructed to report it back to the Senate with the
11-24 recommendation that it do not pass, but that the Committee
11-25 Substitute adopted in lieu thereof do pass and be printed.
11-26 Zaffirini,
11-27 Chair
11-28 * * * * *
11-29 WITNESSES
11-30 FOR AGAINST ON
11-31 ___________________________________________________________________
11-32 Name: Bobby Schmidt x
11-33 Representing: Tx St Bd of Examiners Marriage
11-34 City: Austin
11-35 -------------------------------------------------------------------
11-36 Name: Sam Cangelosi x
11-37 Representing: Tx Asso Marriage & Family
11-38 City: Austin
11-39 -------------------------------------------------------------------
11-40 Name: Dr. Tom Milnolland x
11-41 Representing: Bd of Examiners Marriage &
11-42 City: Abilene
11-43 -------------------------------------------------------------------