BILL ANALYSIS C.S.H.B. 2184 By: Uher 4-26-95 Committee Report (Substituted) BACKGROUND In 1965, the Legislature limited the practice of engineering to those persons who were licensed by virtue of their qualifications. Enforcement of this licensure requirement has been limited to filing a misdemeanor criminal case with a local jurisdiction or filing an injunction against a non-licensed person to prevent unlawful practice. Both procedures are awkward, and have been proven ineffective in preventing future occurrences. Disciplining licensed engineers for improper practice has also been difficult because punishments are limited to reprimands or loss of licensure. The first option doesn't serve as a deterrent, and the second causes a dramatic loss of income, sometimes for relatively minor offenses. One of the most disturbing trends is the recent increase in the number of enforcement cases. Over half of all cases resulting in disciplinary action by the State Board of Registration for Professional Engineers have occurred since 1988; the Board has been in existence since 1937. This increase demands better tools to adequately address the situation. There is a nationwide trend toward administrative penalties for violations of engineering practice acts. The model law for the National Council of Examiners for Engineering and Surveying includes a section similar to this bill. Neighboring states such as Louisiana have already adopted such bills. Many other licensing and enforcement agencies have already received the authority to issue citations and fines for violations as a result of recent Sunset Reviews. The Board of Registration for Professional Engineers is not scheduled for Sunset Review for another eight years. PURPOSE CSHB 2184 provides statutory authority for the Board to issue citations and monetary fines for violations of the Texas Engineering Practice Act and Board Rules. RULEMAKING AUTHORITY It is the committee's opinion that this bill does not grant any additional rulemaking authority to a state officer, institution, or agency. SECTION BY SECTION ANALYSIS SECTION 1. Amends Section 1.1, Article 3271a, V.T.C.S. (Texas Engineering Practice Act), to delete the necessity of a practicing engineer to be registered as well as licensed under the provisions of this Act. SECTION 2. Amends Section 1.2, Article 3271a, V.T.C.S., to make conforming changes. SECTION 3. Amends Section 1.3, Article 3271a, V.T.C.S., to make a conforming change. SECTION 4. Amends Sections 2(1) and (3), Article 3271a, V.T.C.S., to redefine "board" and "engineer," "professional engineer," "registered engineer," "registered professional engineer," "licensed professional engineer," or "licensed engineer." SECTION 5. Amends Section 3, Article 3271a, V.T.C.S., as follows: Sec. 2. New heading: TEXAS BOARD OF PROFESSIONAL ENGINEERS--APPOINTMENT OF MEMBERS--TERMS. Provides that the board created as the Texas State Board of Registration for Professional Engineers is renamed as the Texas Board of Professional Engineers (board). SECTION 6. Amends Section 3a, Article 3271a, V.T.C.S., to make a conforming change. SECTION 7. Amends Section 4(d), Article 3271a, V.T.C.S., to make a conforming change. SECTION 8. Amends Sections 8(a) and (b), Article 3271a, V.T.C.S., to make conforming changes. SECTION 9. Amends Texas Engineering Practice Act, by adding Section 9A. Provides that Sec. 403.094(h), Government Code, does not apply to the Professional Engineer's Fund. SECTION 10. Amends Section 10(a), Article 3271a, V.T.C.S., to make conforming changes. SECTION 11. Amends Section 11, Article 3271a, V.T.C.S., as follows: Sec. 11. New heading: ROSTER OF LICENSED ENGINEERS. Makes conforming changes. SECTION 12. Amends Section 12, Article 3271a, V.T.C.S., as follows: Sec. 12. New heading: GENERAL REQUIREMENTS FOR LICENSURE. Makes conforming changes. SECTION 13. Amends Section 13(a), (b), and (d), Article 3271a, V.T.C.S., to make conforming changes. SECTION 14. Amends Section 13B(a) and (c), Article 3271a, V.T.C.S., to make conforming changes. SECTION 15. Amends Section 14(a), Article 3271a, V.T.C.S., to make a conforming change. SECTION 16. Amends Section 15, Article 3271a, V.T.C.S., to make conforming changes. SECTION 17. Amends Section 16, Article 3271a, V.T.C.S., to make conforming changes. SECTION 18. Amends Section 16.1, Article 3271a, V.T.C.S., as follows: Sec. 16.1. New heading: EXPIRATION DATES OF LICENSES. Makes a conforming change. SECTION 19. Amends Section 17, Article 3271a, V.T.C.S., to make a conforming change. SECTION 20. Amends Section 18, Article 3271a, V.T.C.S., to make conforming changes. SECTION 21. Amends Section 19(a), Article 3271, V.T.C.S., to make a conforming change. SECTION 22. Amends Section 20, Article 3271a, V.T.C.S., to make conforming changes. SECTION 23. Amends Section 21, Article 3271a, V.T.C.S., as follows: Sec. 21. New heading: LICENSURE BY NONRESIDENTS. Makes conforming changes. SECTION 24. Amends Section 22, Article 3271a, V.T.C.S., as follows: Sec. 22. New heading: DENIAL, REVOCATION, SUSPENSION, PROBATION, REPRIMAND, RE-ISSUANCE AND REFUSAL OF LICENSE. Makes conforming changes. SECTION 25. Amends Section 22A, Article 3271a, V.T.C.S., to make conforming changes. SECTION 26. Amends Article 3271a, V.T.C.S., by adding Section 22C, as follows: Sec. 22C. (a) Authorizes the board to impose an administrative penalty against a person registered under this Act or any other person who violates this Act or a rule or order adopted under this Act. (b) Authorizes the penalty for a violation to be in an amount not to exceed $5,000. Provides that each day a violation continues or occurs is a separate violation for purposes of imposing a penalty. (c) Establishes the basis on which the amount of the penalty is calculated. (d) Authorizes the director of the board to hold informal conferences, hold peer reviews, or perform any other procedures, including the subpoenaing of witnesses and records, to determine whether a violation has occurred. Authorizes the director to issue the chairman of the board a report that states the facts on which the determination is based and the director's recommendation on the imposition of a penalty, including a recommendation on the amount of the penalty. (e) Requires the director to give written notice of the report to the person. Authorizes the notice to be given by certified mail. Requires the notice to include a brief summary of the alleged violation and a statement of the amount of the recommended penalty and to inform the person that the person has a right to a hearing on the occurrence of the violation, the amount of the penalty, or both the occurrence of the violation and the amount of the penalty. (f) Authorizes the person to accept the determination and recommended penalty of the director or to make a written request for a hearing on the violation and its consequences within 20 days after the date the person receives the notice. (g) Requires the board by order to approve the determination and impose the recommended penalty if the person accepts the determination and recommended penalty of the director. (h) Requires the director to set a hearing and give notice of the hearing to the person if the person requests a hearing or fails to respond timely to the notice. Requires the hearing to be held by an administrative law judge of the State Office of Administrative Hearings. Requires the administrative law judge to make findings of fact and conclusions of law and promptly issue to the board a proposal for a decision about the occurrence of the violation and the amount of a proposed penalty. Authorizes the board by order to find that a violation has occurred and impose a penalty or to find that no violation occurred. (i) Requires the notice of the board's order given to the person under Chapter 2001, Government Code, to include a statement of the right of the person to judicial review of the order. (j) Sets forth the actions the person is required to perform within 30 days of the board's order becoming final. (k) Authorizes a person acting under Subsection (j) to stay enforcement of the penalty under certain conditions or to request the court to stay enforcement of the penalty. (l) Authorizes the director to file with the court a contest to the affidavit on receipt by the director of a copy of an affidavit. Requires the court to hold a hearing on the facts alleged in the affidavit as soon as practicable and to stay the enforcement of the penalty finding that the alleged facts are true. Provides that the person who files an affidavit has the burden of proving that the person is financially unable to pay the amount of the penalty and to give a supersedeas bond. (m) Authorizes the director to refer the matter to the attorney general for collection of the penalty if the person does not pay the penalty and the enforcement of the penalty is not stayed. (n) Provides that judicial review of the order of the board is instituted by filing a petition as provided by Chapter 2001G, Government Code, and is under the substantial evidence rule. (o) Authorizes the court to uphold or reduce the amount of the penalty and order the person to pay the full or reduced penalty. Requires the court to order that no penalty is owed if the court does not sustain the occurrence of the violation. (p) Requires the court to proceed under this subsection when the judgment of the court becomes final. Requires the court to order that the appropriate amount plus accrued interest be remitted to the person. Establishes the procedures for calculation and payment of interest. Requires the court to order the release of the bond if the person gave a supersedeas bond and if the amount of the penalty is not upheld by the court. Requires the court to order the release of the bond after the person pays the amount. (q) Requires a penalty collected under this section to be remitted to the comptroller for deposit in the general revenue fund, except that the portion of the penalty that represents the costs of the board in investigating and prosecuting the violation shall be remitted to the board for enforcement purposes. (r) Provides that all proceedings under this section are subject to Chapter 2001, Government Code. SECTION 27. Amends Section 23(a), Article 3271a, V.T.C.S., to make conforming changes. SECTION 28. Amends Section 26, Article 3271a, V.T.C.S., to make conforming changes. SECTION 29. Repealer: Section 13(d), Article 3271a, V.T.C.S. (Applications; Fees). SECTION 30. Recreates the professional engineers' fund, as that fund is described by Section 9, Article 3271a, V.T.C.S. SECTION 31. Effective date: September 1, 1995. Applicable to violations occurring on or after effective date. SECTION 32. Change in law related to change in credentials does not affect validity of certificate issued before effective date. SECTION 33. Emergency clause. COMPARISON OF ORIGINAL TO SUBSTITUTE The substitute makes changes to HB 2184 reflecting changes of a technical nature. The substitute changes language regarding credentials issued licensed engineers, deleting numerous references to "registered" and "registration" where they appear in the act. The substitute also adds language to allow the Board to recover the cost of investigating and prosecuting a case through administrative penalty. The substitute also allows the executive director of the Board to hold informal investigative conferences and other procedures to ensure fair and due process. The substitute alters the maximum penalty per occurrence reducing potential fines from the $5,000 contained in the original to the $3,000 contained in the substitute. SUMMARY OF COMMITTEE ACTION HB 2184 was heard in a Public Hearing on April 19, 1995. The Chair laid out HB 2184 and recognized Rep. Kubiak to explain the bill. Rep. Yarbrough offered a complete committee substitute and moved that the full committee adopt CSHB 2184. There was no objection. The Chair recognized the following person to testify as a Resource Witness, registering neutral on the bill: Mr. John R. Speed, Dep. Exec. Dir, Board of Registration for Professional Engineers The Chair recognized the following person to testify in favor of the bill: Mr. Gerhardt Schulle, Jr., Tx. Soc. of Professional Engineers; The Chair recognized Rep. Kubiak to close on the bill. HB 2184 was left pending in committee. There was no objection. HB 2184 was considered in a Public Hearing on April 26, 1995. Rep. Kubiak moved to call up HB 2184 as substituted, which was pending in committee. There was no objection. The Chair laid out CSHB 2184, and recognized Rep. Kubiak. Rep. Kubiak moved that the full committee adopt HB 2184 as substituted, and that it be reported favorably to the full House with the recommendation that it do pass and be printed. The motion prevailed by the following vote: AYES: 9, NAYS: 0, ABSENT: 0.