By Van de Putte                                       H.B. No. 2190
                                 A BILL TO BE ENTITLED
    1-1                                AN ACT
    1-2  relating to the regulation of massage therapy; providing penalties
    1-3        BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
    1-4        SECTION 1.  Section 1, Article 4512k, Vernon's Texas Civil
    1-5  Statutes, is amended to read as follows:
    1-6        Sec. 1.  Definitions.  In this article <Act>:
    1-7        (1)  "Massage therapy" means the manipulation of soft tissue.
    1-8  The term includes, but is not limited to, touch, including holding,
    1-9  stroking, and gliding, <effleurage (stroking),> kneading,
   1-10  <petrissage (kneading)>, percussion <tapotement (percussion)>,
   1-11  compression, direct pressure, vibration, shaking, rocking,
   1-12  friction, nerve strokes, Swedish gymnastics, guided pandiculation,
   1-13  either by use of the hand, finger, elbow, knee or foot or with
   1-14  mechanical or electrical apparatus for the purpose of body massage.
   1-15  Massage therapy may include the use of skin lubricants <oil>, spa
   1-16  therapies <salt glows>, hydrotherapy, cryotherapy, heat lamps, hot
   1-17  and cold packs, and balneotherapy <tub, shower, or cabinet baths>.
   1-18  Equivalent terms for massage therapy are massage, therapeutic
   1-19  massage, massage technology, myo-therapy, body massage, bodywork,
   1-20  somatic therapy, body rub or any derivation of those terms. Massage
   1-21  therapy is a healthcare service when <the massage therapy> used for
   1-22  therapeutic purposes.  As used in the article <Act>, the terms
   1-23  "therapy" and "therapeutic" do not include diagnosis, the treatment
    2-1  of illness or disease, or any service or procedure for which a
    2-2  registration or license to practice medicine, chiropractic,
    2-3  physical therapy, or podiatry as required by law.  Massage therapy
    2-4  does not constitute the practice of chiropractic or physical
    2-5  therapy.
    2-6              (2)  "Licensed massage <Massage> therapist" means an
    2-7  individual who has successfully completed the required basic and
    2-8  advanced coursework in massage therapy and state examinations and
    2-9  is licensed to use the title "licensed massage therapist", the
   2-10  designation "L.M.T.", and offer massage therapy services as
   2-11  provided by this article <practices or administers massage therapy>
   2-12  to a <patron> client of either gender for compensation.  <The term
   2-13  includes a registered massage therapist, therapeutic massage
   2-14  practitioner, massage technician, masseur, masseuse, myo-therapist,
   2-15  body massager, body rubber, or any other derivation of those
   2-16  titles>.
   2-17              (3)  "Registered massage therapist" means an individual
   2-18  who has successfully completed the required basic coursework in
   2-19  massage therapy and state examination and is registered to use the
   2-20  title "registered massage therapist", the designation "R.M.T.", and
   2-21  offer massage therapy services as provided by this article to a
   2-22  client of either gender for compensation.
   2-23              <(3)  "Massage therapy instructor" means an individual
   2-24  who is a registered massage therapist who is instructing one or
   2-25  more students in massage therapy, and whose instruction is approved
    3-1  by the department.>
    3-2              <(4)  "Massage establishment" means any place of
    3-3  business that advertises massage therapy or offers massage therapy
    3-4  as a service.>
    3-5              (4) <(5)>  "Department" means the Texas Department of
    3-6  Health.
    3-7              (5) <(6)>  "Board" means Texas Board of Health.
    3-8              (6) <(7)>  "Advisory Council" means the Advisory
    3-9  Council on Massage Therapy.
   3-10              (7) <(8)>  "Person" means an individual, partnership,
   3-11  corporation, association, or other legal entity.
   3-12              (8) <(9)>  "Massage school" means an entity, <or>
   3-13  organization, or individual, other than a state-approved
   3-14  educational institution, <with at least two instructors> that
   3-15  offers instruction in basic coursework in massage therapy studies
   3-16  for qualification as a massage therapist or advanced coursework for
   3-17  qualification as a licensed massage therapist, or both, <teaches>
   3-18  and is registered with the department <, at a minimum, the course
   3-19  of instruction required for registration as a massage therapist
   3-20  under this Act>.
   3-21              (9) <(10)>  "Instructor" means an individual who
   3-22  instructs one or more students in any section of the course of
   3-23  instruction <required for registration as a massage therapist under
   3-24  this Act>.
   3-25              <(11)  "Applicant" means a person, including a massage
    4-1  school, a massage therapy instructor, or a massage establishment,
    4-2  that applies for registration under this Act.>
    4-3              <(12)  "Examiner" means a registered massage therapist
    4-4  who administers the practical portion of the state examination to
    4-5  applicants for registration as massage therapists.>
    4-6              <(13)  "Internship program" means a program conducted
    4-7  supervised by a massage therapy instructor in which a student
    4-8  provides massage therapy to the general public.  The massage
    4-9  therapy may be for compensation in an amount set by the massage
   4-10  school or massage therapy instructor and paid to the massage school
   4-11  or massage therapy instructor>.
   4-12              (10) <(14)>  "Sexually oriented business" has the
   4-13  meaning assigned by Section 243.002, Local Government Code.
   4-14              (11)  "Basic coursework" means a course of instruction
   4-15  with a minimum of 300 hours designed to develop competence in the
   4-16  fundamentals of massage theory and application.
   4-17              (12)  "Advanced coursework" means a course of
   4-18  instruction with a minimum of 500 hours designed to provide
   4-19  education in advanced massage theory and applications.
   4-20              (13)  "Physician" means a person licensed by the Texas
   4-21  State Board of Medical Examiners as a physician or a surgeon.
   4-22              (14)  "Commissioner" means Texas Commissioner of
   4-23  Health.
   4-24              (15)  "Professional development course" means a seminar
   4-25  or workshop of 55 hours or less which is designed to add to the
    5-1  professional knowledge of an individual registered or licensed
    5-2  under this article beyond subjects required in the basic or
    5-3  advanced coursework.
    5-4        SECTION 2.  Article 4512k, Vernon's Texas Civil Statutes, is
    5-5  amended by adding Section 1A to read as follows:
    5-6        Sec. 1A.  POLICY STATEMENT.  The purpose of massage therapy
    5-7  is to promote, maintain, and restore well-being, relieve stress and
    5-8  somatic pain, and provide holistic benefits.
    5-9        SECTION 3.  Article 4512k, Vernon's Texas Civil Statutes, is
   5-10  amended by adding Section 1B to read as follows:
   5-11        Sec. 1B.  LICENSE OR REGISTRATION CERTIFICATE REQUIRED.  No
   5-12  person shall practice massage therapy unless that person is
   5-13  licensed or registered as provided in this article or exempt under
   5-14  Section 4 of this article.  No person shall use the title of
   5-15  "massage therapist", "registered massage therapist", "licensed
   5-16  massage therapist", "R.M.T." or "L.M.T." unless that person is
   5-17  either licensed or registered as provided in this article.
   5-18        SECTION 4.  Section 2, Article 4512k, Vernon's Texas Civil
   5-19  Statutes, is amended to read as follows:
   5-20        Sec. 2.  Registered Massage Therapist Applicant
   5-21  <REGISTRATION> þNRequirementsää; Examinations.   (a)  An applicant for
   5-22  registration as a registered massage therapist must file a written
   5-23  application and an application and examination fee, as prescribed
   5-24  by the department.  In addition to any other information required
   5-25  by the department, an applicant must submit evidence satisfactory
    6-1  to the department that the applicant has completed the required
    6-2  basic coursework or experience, as applicable, to qualify for the
    6-3  registered massage therapist examination.  <An individual who
    6-4  practices as a massage therapist, or who represents that the
    6-5  individual is a massage therapist must register as provided by this
    6-6  Act, unless the individual is exempt from registration.  A massage
    6-7  therapist may not perform massage therapy, whether or not for
    6-8  compensation, at or for a sexually oriented business.>
    6-9        (b)  In order to be eligible for the registered massage
   6-10  therapist examination, the applicant must present evidence <An
   6-11  individual who registers as a massage therapist under this Act must
   6-12  present evidence satisfactory to the board> that the applicant
   6-13  <person>:
   6-14              (1)  has successfully <satisfactorily> completed at
   6-15  least 300 hours of basic coursework in massage therapy studies <in
   6-16  a 300 hour, supervised course of instruction> provided by a
   6-17  <massage therapy instructor, by a> massage school registered with
   6-18  the department, by a state approved educational institution, or a
   6-19  <by any> combination of both <instructors or schools in which 125
   6-20  hours are dedicated to the study of Swedish massage therapy
   6-21  techniques taught by a massage therapy instructor, 50 hours to the
   6-22  study of anatomy, 25 hours to the study of physiology, 15 hours to
   6-23  the study of hydrotherapy, 15 hours to the study of business
   6-24  practices and professional ethics standards, 20 hours to the study
   6-25  of health and hygiene, and 50 hours to an internship program>.
    7-1              (2)  is licensed, certified, or registered to provide
    7-2  <as a> massage therapy services <therapist> in another jurisdiction
    7-3  <state or country> that has and maintains standards and
    7-4  requirements of practice and licensing, certification or
    7-5  registration that substantially conform to those of this state, as
    7-6  determined by the department; <or>
    7-7              (3)  has practiced massage therapy <as a massage
    7-8  therapist> as a profession for not less than five years in another
    7-9  jurisdiction <state or country> that does not have or maintain
   7-10  standards and requirements of practice and licensing or
   7-11  registration that substantially conform to those of this state, as
   7-12  determined by the department<.>; or
   7-13              (4)  is certified by the National Certification Board
   7-14  of Therapeutic Massage and Bodywork or any successor organization.
   7-15        (c)  The 300 hour-minimum basic coursework in massage therapy
   7-16  studies shall include courses in the subjects of anatomy,
   7-17  physiology, health and hygiene, basic massage technique, business
   7-18  practices, and hydrotherapy.  The board shall adopt rules that
   7-19  specify general course content and the minimum number of hours of
   7-20  instruction for each of these subjects.  An internship of at least
   7-21  40 hours is also required as part of the basic coursework.  Only
   7-22  coursework taught by a registered massage school or state-approved
   7-23  educational institution shall qualify for credit under subsection
   7-24  (a)(1) of this section.  In the event that a curriculum is
   7-25  developed by national accrediting organization that is commensurate
    8-1  with the 300 hour basic coursework in massage therapy studies
    8-2  specified in this subsection, the board may adopt that curriculum
    8-3  in lieu of the curriculum specified in this subsection.
    8-4        (d) <(c)>  A student in a state-approved course of
    8-5  instruction that consists of a minimum of 300 hours is exempt from
    8-6  registration as a registered massage therapist under this article
    8-7  <Act> if the student provides massage therapy as part of an
    8-8  internship program or for no compensation.
    8-9        (e)  The department may accept massage therapy coursework
   8-10  taken outside of this state to satisfy one or more of the basic
   8-11  coursework requirements contained in Subsection (a)(1) of this
   8-12  section if the out-of-state coursework is equivalent to the
   8-13  coursework required by the department.
   8-14        (f)  The department shall administer the registered massage
   8-15  therapist examination no less than two times each year.  The
   8-16  registered massage therapist examination shall consist of both
   8-17  written and practical components and shall cover those subjects
   8-18  required by subsection (c) of this section.  In the event that a
   8-19  national examination is developed that is commensurate to the
   8-20  examination administered by the department, the board may adopt
   8-21  that examination in lieu of the examination developed by the
   8-22  department.
   8-23        (g)  The department or its designee may hire examiners to
   8-24  assist with administration of the examination.
   8-25        SECTION 5.  Article 4512k, Vernon's Texas Civil Statutes, is
    9-1  amended by adding Section 2.1 to read as follows:
    9-2        Sec. 2.1.  REGISTERED MASSAGE THERAPIST SCOPE OF PRACTICE.  A
    9-3  person registered as a registered massage therapist may only
    9-4  perform massage therapy services for which they have received the
    9-5  appropriate education and training.
    9-6        SECTION 6.  Article 4512k, Vernon's Texas Civil Statutes, is
    9-7  amended by adding Section 2.2 to read as follows:
    9-8        Sec. 2.2.  LICENSED MASSAGE THERAPIST APPLICANT REQUIREMENTS;
    9-9  EXAMINATIONS.  (a)  An applicant for licensure as a licensed
   9-10  massage therapist must file a written application and an
   9-11  application and examination fee, as prescribed by the department.
   9-12  In addition to any other information required by the department, an
   9-13  applicant must submit evidence satisfactory to the department that:
   9-14              (1)  the applicant has successfully completed a minimum
   9-15  of 300 hours of basic coursework and a minimum of 500 hours in
   9-16  advanced coursework in massage therapy studies from a massage
   9-17  school registered with the department, a state approved educational
   9-18  institution, or a combination of both, and has passed the
   9-19  registered massage therapist examination; or
   9-20              (2)  the applicant is currently in good standing with
   9-21  the department as a registered massage therapist and has
   9-22  successfully completed a minimum of 500 hours in advanced
   9-23  coursework in massage therapy studies from a massage school
   9-24  registered with the department, a state approved educational
   9-25  institution or a combination of both.
   10-1        (b)  The 500-hour minimum advanced coursework in massage
   10-2  therapy studies shall include courses in the subjects of advanced
   10-3  anatomy and physiology beyond that taught in the basic coursework,
   10-4  pathology and contraindications, communicable diseases,
   10-5  inter-professional communications, practice management,
   10-6  professional ethics and scope of practice, and one or more specific
   10-7  massage modalities and their clinical applications.  The board
   10-8  shall adopt rules that specify general course content and the
   10-9  minimum number of hours for instruction for each of these subjects.
  10-10  Only coursework taught by a registered massage school or a
  10-11  state-approved educational institution shall qualify for credit
  10-12  under subsection (a) of this section.  In the event that a
  10-13  curriculum is developed by national accrediting organization that
  10-14  is commensurate with the curriculum for 500 or more hours of
  10-15  advanced coursework in massage therapy studies specified in this
  10-16  subsection, the board may adopt that curriculum in lieu of the
  10-17  curriculum specified in this subsection.
  10-18        (c)  A person who is licensed, certified or registered as a
  10-19  massage therapist in another jurisdiction that has and maintains
  10-20  standards of practice and licensing, certification, or registration
  10-21  requirements that substantially conform to those of this state, as
  10-22  determined by the department, may apply for licensure as a licensed
  10-23  massage therapist in this state.
  10-24        (d)  The department may accept massage therapy coursework
  10-25  taken outside of this state to satisfy one or more of the advanced
   11-1  coursework requirements contained in Subsection (b) of this section
   11-2  if the out-of-state coursework is equivalent to the coursework
   11-3  required by the department.
   11-4        (e)  The department shall develop a written examination to be
   11-5  administered to applicants for licensure as a licensed massage
   11-6  therapist.  The department shall administer the licensed massage
   11-7  therapist examination no less than two times each year.  The
   11-8  examination shall cover those subjects required by subsection (b)
   11-9  of this section.  In the event that a national examination is
  11-10  developed that is commensurate to the examination administered by
  11-11  the department, the board may adopt that examination in lieu of the
  11-12  examination developed by the department.
  11-13        SECTION 7.  Article 4512k, Vernon's Texas Civil Statutes, is
  11-14  amended by adding Section 2.3 to read as follows:
  11-15        Sec. 2.3.  LICENSED MASSAGE THERAPIST SCOPE OF PRACTICE.  A
  11-16  person licensed as a licensed massage therapist may only perform
  11-17  massage therapy services for which they have received the
  11-18  appropriate education and training.
  11-19        SECTION 8.  Article 4512k, Vernon's Texas Civil Statutes, is
  11-20  amended by adding Section 2.4 to read as follows:
  11-21        Sec. 2.4.  SPECIALTY CERTIFICATION.  (a)  No registered
  11-22  massage therapist or licensed massage therapist shall practice or
  11-23  represent that they practice any specialized technique not included
  11-24  in the basic or advanced coursework unless they have been certified
  11-25  by the department to practice that specialized technique.
   12-1        (b)  The board, by rule, shall develop criteria by which
   12-2  specialized techniques are evaluated so as to determine if the
   12-3  technique should be approved as a certified specialty.  The board
   12-4  shall consider the following in developing criteria for
   12-5  certification:
   12-6              (1)  the appropriateness of the specialized technique
   12-7  as a component of massage therapy;
   12-8              (2)  the content of the curriculum and adequacy and
   12-9  length of instruction in the specialized technique;
  12-10              (3)  the process by which mastery is determined in the
  12-11  specialized technique; and
  12-12              (4)  the legitimacy and reputation of the specialized
  12-13  technique among massage therapy professionals and other health care
  12-14  providers.
  12-15        (c)  A registered massage therapist or licensed massage
  12-16  therapist shall apply with the department for certification in a
  12-17  specialized technique.  A registered massage therapist or licensed
  12-18  massage therapist may be certified to practice more than one
  12-19  specialized technique.
  12-20        SECTION 9.  Article 4512k, Vernon's Texas Civil Statutes, is
  12-21  amended by adding Section 2.5 to read as follows:
  12-22        Sec. 2.5.  PROHIBITED ACTS.  (a)  No registered massage
  12-23  therapist or licensed massage therapist shall perform massage
  12-24  therapy services on an individual without first assessing the
  12-25  physical condition of that individual for contraindications to
   13-1  massage therapy so as to determine if a medical diagnosis should be
   13-2  rendered before performing massage therapy services on that
   13-3  individual.
   13-4        (b)  No registered massage therapist or licensed massage
   13-5  therapist shall continue to perform massage therapy services on an
   13-6  individual if the registered massage therapist or licensed massage
   13-7  therapist knows or has reason to know that the individual may have
   13-8  an underlying condition that would contraindicate massage therapy
   13-9  and require medical treatment.  This subsection does not apply to a
  13-10  registered massage therapist or licensed massage therapist
  13-11  performing massage therapy services on an individual under the
  13-12  direction, supervision or referral of a physician, chiropractor or
  13-13  physical therapist or to a registered massage therapist or licensed
  13-14  massage therapist performing massage therapy services unrelated to
  13-15  a possible underlying condition that might require medical
  13-16  treatment.
  13-17        (c)  No registered massage therapist or licensed massage
  13-18  therapist may perform massage therapy, whether or not for
  13-19  compensation, at or for a sexually oriented business.
  13-20        (d)  No individual not licensed or registered under this
  13-21  article may use the word "massage" on any sign, display, or other
  13-22  form of advertising unless the individual is expressly exempt from
  13-23  the licensing or registration requirements of this article.
  13-24        (e)  No sexually oriented business may use the word "massage"
  13-25  on any sign or other form of advertising.
   14-1        (f)  No person, including those licensed or registered under
   14-2  this article, may advertise by combining advertising for a massage
   14-3  therapy service with any sexually oriented business including
   14-4  escort or dating services, nude or lingerie modeling, adult video
   14-5  stores or by referring to any personal physical qualities of the
   14-6  practitioners.
   14-7        SECTION 10.  Section 2A, Article 4512k, Vernon's Texas Civil
   14-8  Statutes, is amended to read as follows:
   14-9        Sec. 2A.  MASSAGE SCHOOLS <, MASSAGE THERAPY INSTRUCTORS,>
  14-10  AND MASSAGE PRACTITIONER INTERNSHIPS.  (a)  Any entity,
  14-11  organization, or individual, other than a state-approved
  14-12  educational institution, that offers or seeks to offer basic
  14-13  coursework for qualification for registration as a registered
  14-14  massage therapist or advanced coursework for qualification for
  14-15  licensure as a licensed massage therapist, or both, is required to
  14-16  register as a <A> massage school <that offers at a minimum, the
  14-17  course of instruction required for registration as a massage
  14-18  therapist must register> with the department.  To receive a
  14-19  registration certificate from the department, a <A> massage school
  14-20  applicant must meet the minimum standards <of operation>
  14-21  established by the board <rule>.
  14-22        <(b)  A massage therapy instructor must register with the
  14-23  department as provided by this Act.>
  14-24        <(c)  An instructor must meet the minimum requirements
  14-25  established by board rule.>
   15-1        (b)  No massage school shall permit a person to instruct any
   15-2  subject unless that person is qualified to offer instruction in
   15-3  that subject area as provided by the rules of the board.
   15-4        (c) <(d)>  A registered massage therapist <An> internship
   15-5  <program> shall be conducted in compliance with this article and
   15-6  the rules of the board and shall take place on the massage school
   15-7  grounds or on other sites <or in a clinic or classroom setting>
   15-8  provided by the massage school that have been approved by the
   15-9  department <or massage therapy instructor>.
  15-10        (d) <(e)>  A student must successfully complete all required
  15-11  coursework prior to <the requirements of the first 250 hours of
  15-12  training at the massage school or with the massage therapy
  15-13  instructor before> being eligible to enter the internship
  15-14  <program>.
  15-15        <(f)  A student who is participating in an internship program
  15-16  may:>
  15-17              <(1)  make an appointment with a client;>
  15-18              <(2)  interview a client;>
  15-19              <(3)  perform massage therapy;>
  15-20              <(4)  collect and review a client evaluation with the
  15-21  student's supervisor;>
  15-22              <(5)  perform other tasks necessary to the business of
  15-23  providing massage therapy to the public.>
  15-24        (e) <(g)>  A student who is participating in an internship
  15-25  <program> must be under the supervision and direction of a massage
   16-1  school <therapy> instructor during the hours that the student is
   16-2  engaged in activities related to the internship <working in the
   16-3  program>.
   16-4        (f) <(h)>  An internship <program> shall provide a student
   16-5  with a minimum of 40 hours of hands-on massage therapy experience
   16-6  and include training in the business aspects of providing massage
   16-7  therapy services to the public.
   16-8        <(i)  An internship program must meet the qualifications
   16-9  established by the board with the advice of the advisory council>.
  16-10        <(j)  The department> <shall regulate all school hours
  16-11  provided by a massage school or a massage therapy instructor>.
  16-12        (g) <(k)>  A massage school <or a massage therapy instructor>
  16-13  may not offer a course of instruction for registration as a
  16-14  registered massage therapist or licensure as a licensed massage
  16-15  therapist which requires the successful completion of more course
  16-16  hours than are required by the department for registration as a
  16-17  registered massage therapist or licensure as a licensed massage
  16-18  therapist under this article <chapter>.
  16-19        (h) <(l)>  A massage school <or massage therapy instructor>
  16-20  registered under this article <chapter> must give each prospective
  16-21  student a notice that clearly states the number of course hours
  16-22  which must be successfully completed before a student can qualify
  16-23  for registration <register> as a registered massage therapist or
  16-24  for licensure as a licensed massage therapist under this article
  16-25  <chapter>.
   17-1        <(m)  The notice required by Subsection (l) of this section
   17-2  must be given to each prospective student at a time and in a manner
   17-3  that provides the student with sufficient opportunity to read the
   17-4  notice and discuss it with massage school officials or with the
   17-5  massage therapy instructor, if necessary for understanding and
   17-6  clarity, before signing an enrollment contract and before the
   17-7  massage school or the massage therapy instructor accepts a student
   17-8  in a course of study.>
   17-9        SECTION 11.  Article 4512k, Vernon's Texas Civil Statutes, is
  17-10  added Section 2A.1 to read as follows:
  17-11        Sec. 2A.1.  PROFESSIONAL DEVELOPMENT COURSES.  (a)  Any
  17-12  professional development course in massage therapy offered in this
  17-13  state must be approved by the department.
  17-14        (b)  An individual who intends to conduct a professional
  17-15  development course in this state shall apply with the department
  17-16  for approval of the course on an application form prescribed by the
  17-17  department.  The department may require any additional information
  17-18  necessary for review of the application.  A fee may be charged in
  17-19  connection with an application.
  17-20        (c)  In order to be approved by the department, a
  17-21  professional development course shall:
  17-22              (1)  offer instruction in a subject or technique
  17-23  related to massage therapy by an individual or group of individuals
  17-24  with expertise in that subject or technique;
  17-25              (2)  provide for a 100% refund of all tuition or fees
   18-1  paid if a participant cancels their registration 24 hours prior to
   18-2  the first day of the course; and
   18-3              (3)  provide for a limited refund of all tuition or
   18-4  fees paid if a participant cancels their registration within 24
   18-5  hours of the first day of the course, provided that such limited
   18-6  refunds are disclosed in the registration material for the course.
   18-7        SECTION 12.  Section 4, Article 4512k, Vernon's Texas Civil
   18-8  Statutes, is amended to read as follows:
   18-9        Sec. 4.  Exemptions.  This article <Act> does not apply to:
  18-10              (1)  a person who is licensed in this state as a
  18-11  physician, chiropractor, physical therapist, nurse, cosmetologist,
  18-12  athletic trainer, or member of another similar profession that is
  18-13  subject to state licensing, while the person is practicing within
  18-14  the scope of the license;
  18-15              (2)  a school approved by the Central Education Agency
  18-16  or that is otherwise approved by the state; <or>
  18-17              (3)  an instructor who is otherwise approved by the
  18-18  state to teach in an area of study included in the required course
  18-19  of instruction;<.>
  18-20              (4)  an employer who is sponsoring a course or course
  18-21  of instruction for the training of its own employees and for which
  18-22  no tuition is charged to the employees; or
  18-23              (5)  a trade, business or professional organization
  18-24  that sponsors a course or course of instruction for members or
  18-25  guests of the association when offered at a meeting or convention
   19-1  and when there is no additional charge for such course.
   19-2        SECTION 13.  Section 6, Article 4512k, Vernon's Texas Civil
   19-3  Statutes, is amended to read as follows:
   19-4        Sec. 6.  Penalty.  <(a)>  A person commits an offense if that
   19-5  person knowingly violates Section 1B, 2.5(d), 2.5(e) or 2.5(f) of
   19-6  this article.  An offense under this subsection is a Class C
   19-7  misdemeanor.  However, if it is shown on the trial of an offense
   19-8  under this section that the person had been previously convicted
   19-9  one or more times of an offense under this section, the offense is
  19-10  a Class A misdemeanor <subject to the registration requirements of
  19-11  this Act commits an offense if the person knowingly violates
  19-12  Section 2, 2A or 5 of this Act>.
  19-13        <(b)  The owner or operator of a massage establishment
  19-14  commits an offense if that person knowingly violates Section 2B or
  19-15  5 of this Act.>
  19-16        <(c)  The owner or operator of a massage school commits an
  19-17  offense if that person knowingly violates Section 2A or 5 of this
  19-18  Act>.
  19-19        <(d)  An offense under this section is a Class C misdemeanor.
  19-20  However, if it is shown on the trial of an offense under this
  19-21  section that the person had been previously convicted one or more
  19-22  times of an offense under this section, the offense is a Class A
  19-23  misdemeanor.>
  19-24        <(e)  person subject to the registration requirements of this
  19-25  Act commits an offense if the person collects a fee or other form
   20-1  of compensation for massage therapy without being registered under
   20-2  this Act.>
   20-3        SECTION 14.  Section 7A, Article 4512k, Vernon's Texas Civil
   20-4  Statutes, is amended to read as follows:
   20-5        Sec. 7A.  <BOARD RULES> MASSAGE SCHOOL <SCHOOLS> STANDARDS.
   20-6  The board shall develop rules on <relating to a massage schools
   20-7  must contain minimum> standards for massage schools.  Standards
   20-8  shall be developed for:
   20-9              (1)  the issuance, denial, renewal, suspension,
  20-10  probation, or revocation of a registration certificate under this
  20-11  article <Act>;
  20-12              (2)  the qualifications and supervision of professional
  20-13  and instructional personnel;
  20-14              (3)  the supervision of students by professional and
  20-15  instructional personnel;
  20-16              (4)  the equipment essential to the education, health,
  20-17  and safety of students, school personnel, and the public;
  20-18              (5)  the safety and sanitary <and hygienic> condition
  20-19  of a school;
  20-20              (6)  the provision of massage therapy by a school or a
  20-21  student;
  20-22              (7)  the maximum number of hours a student may
  20-23  accumulate in a school's internship program without being required
  20-24  register under this article <Act>;
  20-25              (8)  the maintenance of educational and clinical
   21-1  records <kept> by a school;
   21-2              (9)  the organizational structure of a school,
   21-3  including the lines of authority and the delegation of
   21-4  responsibility;
   21-5              <(10)  fire prevention and safety within a school;>
   21-6              (10) <(11)>  the schools' curriculum and educational
   21-7  materials;
   21-8              (11) <(12)>  school inspections; and
   21-9              (12) <(13)>  any other aspect of the operation of a
  21-10  school that the board considers necessary to protect students,
  21-11  school personnel, or the public.
  21-12        SECTION 15.  Section 7D, Article 4512k, Vernon's Texas Civil
  21-13  Statutes, is amended to read as follows:
  21-14        Sec. 7D.  REGULATION OF <BOARD RULES FOR> REGISTERED MASSAGE
  21-15  THERAPISTS AND LICENSED MASSAGE THERAPISTS.  The board shall
  21-16  develop rules governing <relating to a massage therapist must
  21-17  contain minimum> standards of practice for registered massage
  21-18  therapists and licensed massage therapists.  Rules shall be
  21-19  developed for:
  21-20              (1)  the issuance, denial, renewal, suspension,
  21-21  revocation, or probation of a registered massage therapist
  21-22  registration certificate and a licensed massage therapist license
  21-23  under this article <Act>;
  21-24              <(2)  the qualifications of a massage therapist;>
  21-25              (2) <(3)>  the sanitary and hygienic conditions of the
   22-1  physical environment in which a registered massage therapist or a
   22-2  licensed massage therapist practices massage therapy;
   22-3              (3) <(4)>  the maintenance and inspection of records
   22-4  kept by a registered massage therapist and a licensed massage
   22-5  therapist;
   22-6              (4) <(5)>  the maintenance and inspection of the
   22-7  <records,> equipment used by <, and the sanitary and hygienic
   22-8  conditions of the physical environment in which> a registered
   22-9  massage therapist or a licensed massage therapist practicing
  22-10  <practices> massage therapy; and
  22-11              (5) <(6)>  any other aspect of the practice of a
  22-12  registered massage therapist or licensed massage therapist
  22-13  necessary to protect the public.
  22-14        SECTION 16.  Section 8, Article 4512k, Vernon's Texas Civil
  22-15  Statutes, is amended to read as follows:
  22-16        Sec. 8.  Advisory Council.  (a)  The Advisory Council on
  22-17  Massage Therapy is created as an advisory council to the
  22-18  department.
  22-19        (b)  The advisory council shall be <is> composed of nine
  22-20  members appointed by the board <of health>.  Two <Five> members
  22-21  must be registered massage therapists <regulated under this Act>;
  22-22  two members must licensed massage therapists; one member shall be
  22-23  an owner of a massage school; <one member must be a licensed
  22-24  chiropractor,> one member must be a <licensed> physician
  22-25  specializing in physical medicine neurology or orthopaedics; and
   23-1  two members must be representatives of the general public.
   23-2        (c)  Members of the advisory council shall serve <hold office
   23-3  for> staggered terms of six years.  Three members' terms expire
   23-4  September 1 of each odd-numbered year.  In the event of a vacancy
   23-5  during a term, the board shall appoint a replacement who meets the
   23-6  qualifications of the vacated office to fill the unexpired portion
   23-7  of the term.
   23-8        (d)  A member of the advisory council may not receive
   23-9  compensation for serving on the council, but is entitled to receive
  23-10  the state per diem allowance as set by <the legislature in> the
  23-11  General Appropriations Act for transportation and related expenses
  23-12  incurred for each day the member engages in the business of the
  23-13  council.
  23-14        (e)  A person who is required to register as a lobbyist under
  23-15  Chapter 305, Government Code, may not serve as a member of the
  23-16  advisory council.  A person is not eligible for appointment as a
  23-17  public member of the advisory council if the person or the person's
  23-18  spouse:
  23-19              (1)  is registered, certified, or licensed by an
  23-20  occupational regulatory agency in the field of health care;
  23-21              (2)   is employed by or participates in the management
  23-22  of a business entity or other organization regulated by the
  23-23  department or receiving funds from the department;
  23-24              (3)  owns or controls, directly or indirectly, more
  23-25  than a 10 percent interest in a business entity or other
   24-1  organization regulated by the department or receiving funds from
   24-2  the department; or
   24-3              (4)  uses or receives a substantial amount of tangible
   24-4  goods, services, or funds from the department.
   24-5        (f)  The advisory council is subject to the open meetings
   24-6  law, Chapter 552.001 et. seq., Texas Government Code, <Chapter 271,
   24-7  Acts of the 60th Legislature, Regular Session, 1967 (Article
   24-8  6252-17, Vernon's Texas Civil Statutes),> and the Administrative
   24-9  Procedure <and Texas Register> Act, <(Article 6252-13a, Vernon's
  24-10  Texas Civil Statutes)>  Chapter 2001.001, et. seq., Government
  24-11  Code.
  24-12        (g)  A member of the advisory council is not liable to civil
  24-13  action for any act performed in good faith in the execution of
  24-14  duties as a council member.
  24-15        (h)  A massage therapist member of the advisory council may
  24-16  not be a member of another profession regulated or licensed by this
  24-17  state.
  24-18        (i)  It is a ground for removal from the advisory council if
  24-19  a member:
  24-20              (1)  does not have the qualifications required for
  24-21  appointment to the advisory council;
  24-22              (2)  does not maintain the qualifications required for
  24-23  appointment to the advisory council during service on the advisory
  24-24  council;
  24-25              (3)  violates a prohibition contained in Section 4 of
   25-1  this article;
   25-2              (4)  cannot discharge the member's duties for a
   25-3  substantial part of the term for which the member is appointed
   25-4  because of illness or disability; or
   25-5              (5)  is absent from more than half of the regularly
   25-6  scheduled advisory council meetings that the member is eligible to
   25-7  attend during a calendar year unless the absence is excused by
   25-8  majority vote of the advisory council.
   25-9        (j)  If the department has knowledge that a potential ground
  25-10  for removal exists, the department shall notify the chair of the
  25-11  board of the ground.  The chair of the board shall determine if a
  25-12  potential ground for removal exists.  If a ground for removal does
  25-13  exist, the chair of the board shall remove that person from the
  25-14  advisory council.  The validity of an action by the advisory
  25-15  council is not affected by the fact that it is taken when a ground
  25-16  for removal of a advisory council member exists.
  25-17        (k)  The department shall provide an orientation for the
  25-18  members of the advisory council.  The orientation shall provide the
  25-19  following information to advisory council members:
  25-20              (1)  the provisions of this article;
  25-21              (2)  the duties and responsibilities of the department
  25-22  and of the board regarding administration of this article;
  25-23              (3)  the revenue generated from and budget for
  25-24  administration of this article; and
  25-25              (5)  the requirements of the:
   26-1                    (A)  open meetings law, Chapter 551.001 et. seq,
   26-2  Government Code;
   26-3                    (B)  open records law, Chapter 552.001 et. seq,
   26-4  Government Code; and
   26-5                    (C)  Administrative Procedure Act, Chapter
   26-6  2001.001 et. seq, Government Code;
   26-7        <(i)  The advisory council shall report attendance to the
   26-8  board.>
   26-9        SECTION 17.  Section 9, Article 4512k, Vernon's Texas Civil
  26-10  Statutes, is amended to read as follows:
  26-11        Sec. 9.  Powers and Duties of the Advisory Council.  (a)  The
  26-12  advisory council shall assist the board with development of rules
  26-13  to implement the provisions of this article including, but not
  26-14  limited to: <by rule shall prescribe application forms and
  26-15  registration fees.  The advisory council shall set the fees in
  26-16  amounts reasonable and necessary to administer this Act.>
  26-17              (1)  application forms;
  26-18              (2)  general coursework content and minimum number of
  26-19  hours necessary in each subject listed in Sections 2(b)(1) and
  26-20  2.2(?) of this article;
  26-21              (3)  examinations;
  26-22              (4)  fees for services provided by the department in
  26-23  amounts sufficient to meet the expenses of administering this
  26-24  article;
  26-25              (5)  consumer information describing procedures by
   27-1  which consumer complaints may be filed with and resolved by
   27-2  department;
   27-3              (6)  evaluation and approval of professional
   27-4  development courses; and
   27-5              (7)  development of criteria for evaluation of
   27-6  specialized techniques for the purpose of certification.
   27-7        (b)  The advisory council shall meet at least four times
   27-8  <twice> a year.  Additional meetings may be held at the call of the
   27-9  presiding officer or on the written request of any three members of
  27-10  the council.
  27-11        <(c)  The advisory council shall keep a complete record of
  27-12  all registered massage therapists and shall annually prepare a
  27-13  roster showing the names and addresses of all registered massage
  27-14  therapists.  A copy of the roster shall be available to any person
  27-15  requesting it on payment of a fee set by the council in an amount
  27-16  sufficient to cover the costs of distribution of the roster.>
  27-17        SECTION 18.  Section 10, Article 4512k, Vernon's Texas Civil
  27-18  Statutes, is amended to read as follows:
  27-19        Sec. 10.  ISSUANCE OF REGISTRATION CERTIFICATES AND LICENSES;
  27-20  PROVISIONAL REGISTRATIONS.  (a)  The department shall issue a
  27-21  registration certificate or license to each <qualified> applicant
  27-22  who has completed an application, paid the required fees, provided
  27-23  the required evidence of their education or professional
  27-24  experience, as applicable, and any other information required by
  27-25  the department, and has passed the appropriate examination  <To be
   28-1  qualified for a registration certificate, an applicant for
   28-2  registration as a massage therapist must pass the practical and
   28-3  written portions of the state examination>.  Registration
   28-4  certificates and licenses shall be issued to applicants within 30
   28-5  days upon successful completion of the examination.  A picture of
   28-6  the registrant or licensee shall not be required to appear on the
   28-7  registration certificate or license.
   28-8        (b)  A person issued a registration certificate or license by
   28-9  the department shall display the registration certificate or
  28-10  license in an appropriate public manner as specified by the board.
  28-11  Each registered massage therapist and licensed massage therapist
  28-12  must post their registration certificate or license in a
  28-13  conspicuous place in any facility in which the registrant or
  28-14  licensee performs services.  If a registrant or licensee does not
  28-15  perform services at a fixed location, the registrant or licensee
  28-16  shall carry the registration certificate or license with them when
  28-17  they are performing massage therapy services.  Each massage school,
  28-18  registered massage therapist and licensed massage therapist shall
  28-19  display their registration certificate or license on the request of
  28-20  the department, an authorized representative of the department, or
  28-21  a peace officer.
  28-22        <(c)  The issuance of a registration certificate grants all
  28-23  professional rights, honors, and privileges relating to the
  28-24  practice of massage therapy.>
  28-25        (c) <(d)>  A registration certificate or license is the
   29-1  property of the department and must be surrendered on demand.
   29-2        (d) <(e)>  A person issued a registration certificate or
   29-3  license by the department may receive referrals or prescriptions
   29-4  from a physician or referrals from a chiropractor or physical
   29-5  therapist to administer massage therapy<.>; however, neither a
   29-6  referral nor a prescription is required in order for a registrant
   29-7  or licensee to perform massage therapy services on an individual
   29-8  for the purpose of general wellness or for a purpose unrelated to a
   29-9  possible underlying condition that might require medical treatment.
  29-10  Nothing in this article affects the ability of a physician to
  29-11  delegate medical acts under the authority of the Medical Practice
  29-12  Act.
  29-13        (e) <(f)>  The department may <shall> issue a provisional
  29-14  <temporary> registered massage therapist registration certificate
  29-15  to an applicant <for registration> who has <complied> qualified
  29-16  <with the education and experience requirements> for <registration>
  29-17  the registered massage therapist examination under Section 2(b) of
  29-18  this article.  A provisional registration certificate is only valid
  29-19  <A temporary registration certificate is valid for six months,>
  29-20  until <the applicant is issued a massage therapist registration
  29-21  after> successful completion of the first examination for which the
  29-22  applicant is eligible, or until the applicant is notified by the
  29-23  department that the applicant has failed the first examination for
  29-24  which the applicant was eligible <, whichever is later>. The
  29-25  department may assess a reasonable fee for a provisional
   30-1  <temporary> registration certificate.  A provisional license may
   30-2  not be issued to an individual applying for licensure as a licensed
   30-3  massage therapist unless that individual is currently registered as
   30-4  a registered massage therapist in good standing with the
   30-5  department.
   30-6        SECTION 19.  Section 11, Article 4512k, Vernon's Texas Civil
   30-7  Statutes, is amended to read as follows:
   30-8        Sec. 11.  <REGISTRATION,> DENIAL, PROBATION, SUSPENSION, OR
   30-9  REVOCATION.  (a)  The department may refuse to issue a registration
  30-10  certificate or license to an applicant, may suspend or revoke a
  30-11  registration certificate or license, or may place a registrant or
  30-12  licensee <registered person>, including a massage school, <massage
  30-13  therapy instructor, or massage establishment> on probation for any
  30-14  of the following:
  30-15              (1)  obtaining a registration certificate or license by
  30-16  means of fraud, misrepresentation, or concealment of material
  30-17  facts;
  30-18              (2)  selling, bartering, or offering <offer> to sell or
  30-19  barter a registration certificate or license;
  30-20              (3)  violating any rule adopted by the board;
  30-21              (4)  engaging in unprofessional conduct that has
  30-22  endangered or is likely to endanger the health, welfare, or safety
  30-23  of the public as defined by the rules established by the board;
  30-24              (5)  violating a regulation adopted by a political
  30-25  subdivision under Chapter 243, Local Government Code; <or>
   31-1              (6)  violating any provisions of this article <Act.>;
   31-2  or
   31-3              (7)  using drugs or alcohol to an extent that affects
   31-4  professional competence;
   31-5              (8)  having been convicted of, entered a plea of nolo
   31-6  contendere or guilty to, or received deferred adjudication or
   31-7  community supervision for an offense involving prostitution or a
   31-8  sexual offense; or
   31-9              (9)  in the case of a massage school, having conduct
  31-10  occur on the premises of the school which results in any person's
  31-11  conviction of, the entering of a plea of nolo contendere or guilty
  31-12  to, or receipt of deferred adjudication or community supervision
  31-13  for an offense involving prostitution or a sexual offense.
  31-14        (b)  In determining whether a conviction, plea, deferred
  31-15  adjudication, or community supervision under Subsection (a)(8) or
  31-16  Subsection (a)(9) of this section should be the cause for denial,
  31-17  probation, suspension, or revocation, the department shall
  31-18  consider:
  31-19              (1)  the nature of the seriousness of the crime;
  31-20              (2)  the relationship of the crime to the purpose for
  31-21  requiring a registration certificate or license;
  31-22              (3)  the extent to which a registration certificate or
  31-23  license might offer an opportunity to engage in further criminal
  31-24  activity of the same type as that in which the person previously
  31-25  had been involved;
   32-1              (4)  the relationship of the crime to the ability,
   32-2  capacity, or fitness required to perform as a registered massage
   32-3  therapist, licensed massage therapist or massage school.  <An
   32-4  individual who has been convicted of, entered a plea of nolo
   32-5  contendere or guilty to, or receiving deferred adjudication to
   32-6  crimes and offenses involving prostitution or sexual offenses is
   32-7  ineligible for registration as a massage therapist, massage therapy
   32-8  instructor, massage school, or massage establishment. The
   32-9  department shall revoke the registration of a person registered as
  32-10  a massage therapist or a massage therapy instructor who is
  32-11  convicted of, entered a plea of nolo contendere or guilty to, or
  32-12  receiving deferred adjudication to crimes and offenses involving
  32-13  prostitution or other sexual offenses, or who the department
  32-14  determines has practiced or administered massage therapy at or for
  32-15  a sexually oriented business.  The department shall revoke the
  32-16  registration of a person registered as a massage school or massage
  32-17  establishment if the department determines that the school or
  32-18  establishment is a sexually oriented business, or that a crime or
  32-19  offense involving prostitution or other sexual offenses and
  32-20  resulting in a conviction, or to which a plea of nolo contendere or
  32-21  guilty was entered or deferred adjudication was received, has
  32-22  occurred on the premises of the school or establishment.>
  32-23        (c)  In addition to the factors considered under Subsection
  32-24  (b) of this section, the department, in determining the present
  32-25  fitness of a person under Subsection (a)(8) or Subsection (a)(9) of
   33-1  this section, shall consider the following evidence:
   33-2              (1)  the extent and nature of the person's past
   33-3  criminal activity;
   33-4              (2)  age of the person at the time of the commission of
   33-5  the crime;
   33-6              (3)  the amount of time that has elapsed since the
   33-7  person's last criminal activity;
   33-8              (4)  the conduct and work activity of the person prior
   33-9  to and following the criminal activity;
  33-10              (5)  evidence of the person's rehabilitation or
  33-11  rehabilitative effort while incarcerated or following release; and
  33-12              (6)  other evidence of the person's present fitness,
  33-13  including letters of recommendation from prosecution, law
  33-14  enforcement, and correctional officers who prosecuted, arrested or
  33-15  had custodial responsibility for the person; the sheriff and chief
  33-16  of police in the community where the person resides; and any other
  33-17  persons.
  33-18        (d)  It shall be the responsibility of the applicant,
  33-19  registrant or licensee to the extent possible to secure and provide
  33-20  to the department the recommendations of the prosecution, law
  33-21  enforcement, and correctional authorities.  The applicant,
  33-22  registrant or licensee shall also furnish proof in such form as may
  33-23  be required by the department that he or she has maintained a
  33-24  record of steady employment; has supported his or her dependents;
  33-25  has otherwise maintained a record of good conduct and has paid all
   34-1  outstanding court costs, supervision fees, fines, and restitution
   34-2  as may have been ordered in all criminal cases.
   34-3        (e)  Under Subsection (a)(8) and Subsection (a)(9) of this
   34-4  section, the conviction, plea, deferred adjudication or community
   34-5  supervision may be considered by the department, notwithstanding
   34-6  the Code of Criminal Procedure, Article 42.12. Sections 5(c) and
   34-7  20(a).
   34-8        (f) <(c)>  A person whose application for registration or
   34-9  licensure is denied, or whose registration certificate or license
  34-10  is probated, suspended or revoked is entitled to a hearing before
  34-11  the department if the person submits a written request to the
  34-12  department.  Hearings are governed by department rules for a
  34-13  contested hearing and by the Administrative Procedure <and Texas
  34-14  Register> Act, Chapter 2001.001 et. seq, Government Code <(Article
  34-15  6252-13a, Vernon's Texas Civil Statutes)>.
  34-16        <(d)  A person convicted of a violation of this Act is
  34-17  ineligible for registration as a massage therapist, massage therapy
  34-18  instructor, massage school or massage establishment for a period of
  34-19  five years.>
  34-20        SECTION 20.  Article 4512k, Vernon's Texas Civil Statutes, is
  34-21  amended by adding Section 11A to read as follows:
  34-22        Sec. 11A.  ADMINISTRATIVE PENALTIES.  (a)  The department may
  34-23  impose an administrative penalty against a person registered or
  34-24  licensed under this article who violates this article or a rule or
  34-25  order adopted under this article.
   35-1        (b)  The penalty for a violation may be in an amount not to
   35-2  exceed $1,000.  Each day that a violation continues or occurs is a
   35-3  separate violation for the purposes of imposing a penalty.
   35-4        (c)  The amount of the penalty shall be based on:
   35-5              (1)  the seriousness of the violation, including the
   35-6  nature, circumstances, extent, and gravity of any prohibited acts,
   35-7  and the hazard or potential hazard created to the health, safety,
   35-8  or welfare of the public;
   35-9              (2)  the history of any previous violations;
  35-10              (3)  the amount necessary to deter future violations;
  35-11              (4)  efforts to correct the violation; and
  35-12              (5)  any other matter that justice may require.
  35-13        (d)  If the department determines that a violation has
  35-14  occurred, the department may issue a report to the commissioner
  35-15  that states the facts on which the determination is based.  The
  35-16  department shall make a recommendation on the imposition of a
  35-17  penalty, including a recommendation on the amount of the penalty.
  35-18        (e)  Within 14 days after the date on which the report is
  35-19  issued, the department shall give written notice of the report to
  35-20  the person who committed the alleged violation.  The notice may be
  35-21  given by certified mail.  The notice must include a brief summary
  35-22  of the alleged violation and a statement of the amount of the
  35-23  recommended penalty and must inform the person that the person has
  35-24  a right to a hearing on the occurrence of the violation, the amount
  35-25  of the penalty, or both the occurrence of the violation and the
   36-1  amount of the penalty.
   36-2        (f)  Within 20 days after the date the person receives the
   36-3  notice, the person in writing may accept the determination and
   36-4  recommended penalty of the department or may make a written request
   36-5  for a hearing on the occurrence of the violation, the amount of the
   36-6  penalty, or both the occurrence of the violation and the amount of
   36-7  the penalty.
   36-8        (g)  If the person accepts the determination and recommended
   36-9  penalty of the department, the department shall issue an order and
  36-10  impose the recommended penalty.
  36-11        (h)  If the person requests a hearing or fails to respond
  36-12  timely to the notice, the department shall set a hearing and give
  36-13  notice of the hearing to the person.  The hearing shall be held by
  36-14  an administrative law judge of the State Office of Administrative
  36-15  Hearings.  The administrative law judge shall make findings of fact
  36-16  and conclusions of law and promptly issue to the department a
  36-17  proposal for a decision about the occurrence of the violation and
  36-18  the amount of the penalty.  Based on the findings of fact,
  36-19  conclusions of law, and proposal for a decision, the department by
  36-20  order may find the that a violation has occurred and impose a
  36-21  penalty or may find that no violation occurred.
  36-22        (i)  The notice of the department's order given to the person
  36-23  under the Administrative Procedure Act (Chapter 2001.001 et. seq,
  36-24  Government Code) must include a statement of the right of the
  36-25  person to judicial review of the order.
   37-1        (j)  Within 30 days after the date the department's order is
   37-2  final as provided by Section 16(c), the Administrative Procedure
   37-3  Act (Chapter 2001.001 et. seq, Government Code), the person shall:
   37-4              (1)  pay the amount of the penalty;
   37-5              (2)  pay the amount of the penalty and file a petition
   37-6  for judicial review contesting the occurrence of the violation, the
   37-7  amount of the penalty, or both the occurrence of the violation and
   37-8  the amount of the penalty; or
   37-9              (3)  without paying the amount of the penalty, file a
  37-10  petition for judicial review contesting the occurrence of the
  37-11  violation, the amount of the penalty, or both the occurrence of the
  37-12  violation and the amount of the penalty.
  37-13        (k)  Within the 30-day period, a person who acts under the
  37-14  subsection (j)(3) of this section may:
  37-15              (1)  stay enforcement of the penalty by:
  37-16                    (A)  paying the amount of the penalty to the
  37-17  court for placement in an escrow account; or
  37-18                    (B)  giving to the court a supercedes bond
  37-19  approved by the court for the amount of the penalty and that is
  37-20  effective until all judicial review of the department's order is
  37-21  final; or
  37-22              (2)  request the court to stay enforcement of the
  37-23  penalty by:
  37-24                    (A)  filing with the court a sworn affidavit of
  37-25  the person stating that the person is financially unable to pay the
   38-1  amount of the penalty and is financially unable to give the
   38-2  supercedes bond; and
   38-3                    (B)  giving a copy of the affidavit to the
   38-4  executive secretary by certified mail.
   38-5              (l)  If the department receives a copy of an affidavit
   38-6  under subsection (k)(2) of the section may file, with the court
   38-7  within five days after the date the copy is received, a contest to
   38-8  the affidavit.  The court shall hold a hearing on the facts alleged
   38-9  in the affidavit as soon as practicable and shall stay the
  38-10  enforcement of the penalty on finding that the alleged facts are
  38-11  true.  The person who files an affidavit has the burden of proving
  38-12  that the person is financially unable to pay the amount of the
  38-13  penalty and to give a supercedes bond.
  38-14        (m)  If the person does not pay the amount of the penalty and
  38-15  the enforcement of the penalty is not stayed, the department may
  38-16  refer the matter to the attorney general for collection of the
  38-17  penalty.
  38-18        (n)  Judicial review of the order of the department:
  38-19              (1)  is instituted by filing a petition as provided in
  38-20  Section 19 of the Administrative Procedure Act (Chapter 2001.001
  38-21  et. seq, Government Code); and
  38-22              (2)  is under the substantial evidence rule.
  38-23        (o)  If the court sustains the occurrence of the violation,
  38-24  the court may uphold or reduce the amount of the penalty and order
  38-25  the person to pay the full or reduced amount of the penalty.  If
   39-1  the court does not sustain the occurrence of the violation, the
   39-2  court shall order that no penalty is owed.
   39-3        (p)  When the judgment of the court becomes final, the court
   39-4  shall proceed under this subsection.  If the person paid the amount
   39-5  of the penalty and if that amount is reduced or is not upheld by
   39-6  the court, the court shall order that the appropriate amount plus
   39-7  accrued interest be remitted to the person.  The rate of interest
   39-8  is the rate charged on loans to depository institutions by the New
   39-9  York Federal Reserve Bank, and the interest shall be paid for the
  39-10  period beginning on the date the penalty was paid and ending on the
  39-11  date the penalty is remitted.  If the person gave a supercedes bond
  39-12  and if the amount of the penalty is not upheld by the court, the
  39-13  court shall order the release of the bond.  If the person gave a
  39-14  supercedes bond and if the amount of the penalty is reduced, the
  39-15  court shall order the release of the bond after the person pays the
  39-16  amount.
  39-17        (q)  A penalty collected under this section shall be remitted
  39-18  to the comptroller for deposit in the general revenue fund.
  39-19        (r)  All proceedings under this section are subject to the
  39-20  Administrative Procedure Act (Chapter 2001.001 et. seq, Government
  39-21  Code).
  39-22        SECTION 21.  Section 12, Article 4512k, Vernon's Texas Civil
  39-23  Statutes, is amended to read as follows:
  39-24        Sec. 12.  RENEWAL OF REGISTRATION CERTIFICATES AND LICENSES.
  39-25  (a)  Registration or licensure under this article <Act> is subject
   40-1  to annual <periodic> renewal and expires unless the registrant or
   40-2  licensee <registered person> submits an application for renewal
   40-3  accompanied by the renewal fee.
   40-4        (b)  The department shall adopt a system under which
   40-5  registrations and licenses expire and are renewed on various dates
   40-6  of the year.  Initial registration and license fees shall be
   40-7  prorated so that a registrant or licensee <registered person> pays
   40-8  for only that part of the renewal period for which the registration
   40-9  or license is issued until the expiration date of the registration
  40-10  or license.
  40-11        (c)  A person registered  as a registered massage therapist
  40-12  or licensed as a licensed massage therapist under this article
  40-13  <Act> who does not renew the registration certificate or license by
  40-14  the expiration date may renew the registration or license not later
  40-15  than the first anniversary of the expiration date by meeting the
  40-16  requirements set forth in this section and paying a late penalty
  40-17  fee.
  40-18        (d)  The registration certificate or license of a person who
  40-19  fails to meet the renewal requirements of this section is void.
  40-20  Such a person must submit a new application, pay the appropriate
  40-21  fees, and meet the current requirements for registration or
  40-22  licensure.  The department shall determine whether a person
  40-23  applying for registration or licensure under this subsection must
  40-24  take the appropriate examination in conjunction with the new
  40-25  application based upon the rules of the board.
   41-1        SECTION 22.  Section 14, Article 4512k, Vernon's Texas Civil
   41-2  Statutes, is amended to read as follows:
   41-3        Sec. 14.  Effect on Local Regulation.  (a)  Except as
   41-4  provided by Subsection (b) of this section, this article <Act>
   41-5  supersedes any regulation adopted by a political subdivision of
   41-6  this state relating to the licensing or regulation of registered
   41-7  massage therapists or licensed massage therapists.
   41-8        (b)  This article <Act> does not affect<:>
   41-9              <(1)  local regulations relating to zoning requirements
  41-10  for massage establishments or other similar regulations;>
  41-11              <(2)  any local regulations that authorize or require
  41-12  an investigation into the background of an owner or operator of, an
  41-13  investor in, a massage establishment; or>
  41-14              <(3)>  any local regulations that do not relate
  41-15  directly to the practice of massage therapy as performed by a
  41-16  registered massage therapist or licensed massage therapist
  41-17  including those professions listed under Section 4 of this article
  41-18  <Act> while performing duties under their respective licensing Acts
  41-19  <while working with a registered massage therapist>.
  41-20        (c)  Except as provided by Chapter 243, Local Government
  41-21  Code, a political subdivision may not adopt regulations of the type
  41-22  listed in Subsection (b) of this section that are more restrictive
  41-23  for registered massage therapists or licensed massage therapists
  41-24  <or massage establishments> than for other health care
  41-25  professionals <or establishments>.
   42-1        SECTION 23.  Section 17, Article 4512k, Vernon's Texas Civil
   42-2  Statutes, is amended to read as follows:
   42-3        Sec. 17.  Inspections and Investigations.  The department or
   42-4  its authorized representative may enter the premises of a
   42-5  registration or license applicant or registration or license holder
   42-6  at reasonable times to conduct an inspection incidental to the
   42-7  issuance of a registration or license and at other times as the
   42-8  department considers necessary to ensure compliance with this
   42-9  article <Act> and the rules adopted under this article <Act>.
  42-10        SECTION 24.  Section 19, Article 4512k, Vernon's Texas Civil
  42-11  Statutes, is amended to read as follows:
  42-12        Sec. 19.  Memorandum of Understanding.  If the department
  42-13  enters into a memorandum of understanding with another state agency
  42-14  <the Central Education Agency> for the regulation of massage
  42-15  schools, the memorandum shall<:>
  42-16              <(1)  be adopted by rule, subject to the Administrative
  42-17  Procedure and Texas Register Act; and>
  42-18              <(2)>  require that the total of the fees charged by
  42-19  the department and by the other state agency <Central Education
  42-20  Agency> for the registration of a massage school not exceed the
  42-21  fees which would be charged by the department for the registration
  42-22  of the massage school in the absence of the memorandum.
  42-23        SECTION 25.  TRANSITION.  (a)  The board shall adopt the
  42-24  rules in effect on the effective date of this Act for use until
  42-25  such time as the board has adopted rules to succeed those rules,
   43-1  except that any rules relating to provisions in this article that
   43-2  have been repealed or amended in this Act shall be amended to
   43-3  reflect such repeal or amendment.
   43-4        (b)  Each registered massage school that intends to offer
   43-5  advanced coursework shall be prepared to offer advanced coursework
   43-6  six months following final adoption of the advanced coursework
   43-7  requirements.  A registered massage school who does not intent to
   43-8  offer advanced coursework at the end of the six month period
   43-9  following final adoption of the advanced coursework requirements
  43-10  shall notify the department prior to the end of the six month
  43-11  period.  A registered massage school that initially elects not to
  43-12  offer advanced coursework is not prohibited from offering advanced
  43-13  coursework at some future date.
  43-14        (c)  A person who is a registered massage therapist in good
  43-15  standing with the department may apply to take the first licensed
  43-16  massage therapist examination offered without first taking the
  43-17  required advanced coursework.  The opportunity to sit for this
  43-18  examination under these circumstances shall only apply to those
  43-19  persons who are registered massage therapists in good standing with
  43-20  the department at the time the examination is first offered by the
  43-21  department.
  43-22        (d)  On the first renewal date of a registration certificate
  43-23  of an individual registered as an independent massage therapy
  43-24  instructor as of September 1, 1995, the individual shall be given
  43-25  the option of being issued a registration certificate as a massage
   44-1  school.
   44-2        (e)  The terms of the members of the Advisory Council serving
   44-3  on September 1 are terminated as of that date.  The board shall
   44-4  appoint new Advisory Council members by January 1, 1996.
   44-5        SECTION 26.  REPEALER.  Sections 2B, 3, 5, 7, 7B, 7C, and 16,
   44-6  Article 4512k, Vernon's Texas Civil Statutes, are repealed.
   44-7        SECTION 27.  EFFECTIVE DATE.  This Act takes effect September
   44-8  1, 1995.
   44-9        SECTION 28.  EMERGENCY.  The importance of this legislation
  44-10  and the crowded condition of the calendars in both houses create an
  44-11  emergency and an imperative public necessity that the
  44-12  constitutional rule requiring bills to be read on three several
  44-13  days be suspended, and this rule is hereby suspended.