NDT C.S.H.B. 1321 75(R)BILL ANALYSIS LICENSING & ADMINISTRATIVE PROCEDURES C.S.H.B. 1321 By: Uher 4-1-97 Committee Report (Substituted) BACKGROUND Currently, engineers in the State of Texas are required to be registered with the State Board of Registration for Professional Engineers (board). The board has not undergone sunset review since the early 1980s and is scheduled for sunset review in 2003. C.S.H.B. 1321is a cleanup bill designed to update the definition and allowable enforcement action of the Texas Engineering Practice Act. These changes are proposed to make the current statue more consistent with the national model law of the National Council of Examiners for Engineering and Surveying and the practices of other state agencies, which includes instituting administrative penalties for certain violations. PURPOSE C.S.H.B. 1321 sets forth the procedures for the regulation of the practice of engineering and provides certain penalties. RULEMAKING AUTHORITY It is the committee's opinion that this bill grants additional rulemaking authority in SECTION 11, SECTION 22, SECTION 24, SECTION 25, and SECTION 26, of the bill. SECTION BY SECTION ANALYSIS SECTION 1. Amends Section 1.1, Article 3271a, V.T.C.S. (The Texas Engineering Practice Act), to provide that the privilege of practicing engineering be entrusted only to those persons duly licensed and practicing, rather than licensed, registered, and practicing, under the provisions of this Act. Makes a conforming change. 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 conforming changes. SECTION 4. Amends Sections 2 (1), (3) and (4), Article 3271a V. T. C. S., to redefine "board," "engineer," and "practice of engineering." Defines "licensed engineer," "design coordination," and "engineering surveys." SECTION 5. Amends Section 3, Article 3271a, V.T.C.S., as follows: Sec. 3 New heading: TEXAS BOARD OF PROFESSIONAL ENGINEERS-- APPOINTMENT OF MEMBERS--TERMS. Creates the Texas Board of Professional Engineers (board), rather than a State Board of Registration for Professional Engineers, which is required to administer the provisions of this Act. 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 authorize the board by majority vote to limit the participation of general public members in the evaluation of applications for licensure, rather that registration, except in certain situations. SECTION 8. Amends Sections 8(a) and (b), Article 3271a, to provide that the violation by any engineer of any provision of this Act or any rule or regulation of the board is required to be sufficient cause to suspend or revoke the license, rather than the certificate of registration, of or to issue a formal or informal reprimand to such engineer. Prohibits the board from promulgating rules restricting advertising by a license holder, rather than registrants, except to prohibit false, misleading, or deceptive practices by the license holder. SECTION 9. Amends Section 10(a), Article 3271a, V.T.C.S., to make conforming changes. SECTION 10. Amends Section 11, Article 3271a, V.T.C.S., as follows: Sec. 11 New Heading : ROSTER OF LICENSED ENGINEERS. Makes conforming changes. SECTION 11. Amends Section 12, Article 3271a, V.T.C.S., as follows : Sec. 12 New heading : GENERAL REQUIREMENTS FOR LICENSURE. Authorizes the board to adopt rules providing for the waiver of all or part of the examination requirement under this Act to permit the issuance or reissuance of a license to an applicant. Requires the board to find that the applicant possesses sufficient qualifications to justify the waiver of all or part of the examination requirement and that the issuance of the license to the applicant does not pose a threat to public health, safety, or welfare before the board is authorized to waive the requirement. Makes conforming changes. SECTION 12. Amends Sections 13(a), (b), and (d), Article 3271a, V.T.C.S., to require the board to establish reasonable and necessary fees for the administration of this Act in an amount not to exceed $120, rather than $100, for an examination fee, among other fees. Makes conforming changes. SECTION 13. Amends Sections 13B(a) and (c), Article 3271a, V.T.C.S., to make conforming changes. SECTION 14. Amends Sections 14(a), Article 3271a, V.T.C.S., to make a conforming change. SECTION 15. Amends Section 15, Article 3271a, V.T.C.S., as follows : Sec. 15. New heading : LICENSES SEALS. Requires each license holder upon licensure to obtain a seal of design authorized by the board, bearing the license holder's name and the legend "Licensed Professional Engineer" or " Registered Professional Engineer." Makes conforming changes. SECTION 16. Amends Section 16, Article 3271a, V.T.C.S., to make conforming changes. SECTION 17. Amends Section 16.1, Article 3271a, V.T.C.S., to make conforming changes. SECTION 18. Amends Section 17, Article 3271a, V.T.C.S., to make conforming changes. SECTION 19. Amends Section 18, Article 3271a, V.T.C.S., to prohibit any person, persons, or business entity from holding itself out to the public or any member thereof as being engaged in the practice of engineering unless any and all services are performed or done by a licensed engineer or under the direct supervision of a licensed engineer who is a regular full-time employee of the firm, partnership, association, corporation, or other business entity. Provides that this section does not prohibit a licensed engineer from performing engineering services on a parttime basis. Makes conforming changes. SECTION 20. Amends Section 19(a), Article 3271a, V.T.C.S., to make a conforming change. SECTION 21. Amends Section 20, Article 3271a, V.T.C.S., to delete provisions requiring certain persons to be exempted from the licensure provisions of this act. Makes conforming and nonsubstantive changes. SECTION 22. Amends Article 3271a,V.T.C.S., by adding Section 20A, as follows : Sec. 20A TEMPORARY OR PROVISIONAL LICENSE. Authorizes the board to adopt rules providing standards and procedures for the issuance of a temporary or provisional license under this Act. 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; STATUS REVIEW. Authorizes the board to adopt rules permitting the board to review the status of a license holder who the board believes may have been issued a license through fraud or error or who may constitute a threat to the public health, safety, or welfare. Authorizes the board to suspend or revoke a license held by a person whose status is reviewed under this subsection. Makes conforming and standard recodification changes. SECTION 25. Amends Section 22A, Article 3271a, V.T.C.S., to require the board to adopt rules that permit the board to receive and investigate anonymous and confidential complaints against license holders or any other person who may have violated this act. Requires the board to protect the anonymity of a person who makes an anonymous complaint and maintain the confidentiality of the complaint during the investigation of the complaint. SECTION 26. Amends Article 3271a, V.T.C.S., by adding Section 22C, as follows : Sec. 22C. Authorizes the board to impose an administrative penalty against a person licensed under this Act or any other person or entity that violates this Act or a rule or order adopted under this Act. Authorizes the board to include in the amount of the administration penalty the actual costs of investigating and prosecuting the violation. Sets forth the requirements for the amount of the penalty. Requires the board to adopt rules of procedure for the assessment of an administrative penalty by the board. Requires the rules adopted under this section to conform to the requirements of Chapter 2001, Government Code. Authorizes a person who acts under Subsection (e)(3), within the 30 day period, to stay the enforcement of the penalty or to request the court to stay the enforcement of the penalty by performing certain actions. Sets forth the procedures for enforcement and collection of a penalty under this section. Requires a penalty collected under this section to be remitted to the comptroller for deposit in the general revenue fund, except that a certain portion of the penalty is required to be remitted to the board as reimbursement for performance 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. Amends Article 3271a, V.T.C.S. to make conforming changes. Sec. 27. INVESTIGATORS. Authorizes the board to employ investigators as peace officers. Requires an investigator employed by the board as a peace officer to meet the requirements for peace officers imposed under Chapter 415, Government Code. Requires the board to appoint an investigator who is commissioned as a peace officer and who is qualified by training and experience in law enforcement to supervise, direct, and administer the activities of the commissioned investigators. Authorizes the investigator employed by the board to request the assistance of state and local law enforcement officers in conducting an investigation authorized by this Act. SECTION 30. Amends Article 2.12, Code of Criminal Procedure to include an investigator commissioned by the Texas Board of Professional Engineers under Section 27, Article 3271a, V.T.C.S. (The Texas Engineering Practice Act) to the list of persons who are considered peace officers. Makes conforming changes and standard recodification changes. SECTION 31. Makes application of this Act prospective. SECTION 32. Makes application of this Act prospective. SECTION 33. Emergency clause. Effective date: upon passage. COMPARISON OF ORIGINAL TO SUBSTITUTE The committee substitute clarifies and removes language related to design and construction professionals. The definition of the "practice of engineering" was altered to clarify terms common to allied design professions such as architecture and landscape architecture, and the construction business. Exemptions for contractors, architects, landscape architects, and interior designers were added to complete the clarification. Text was added at the request of the Attorney General to allow the filing of injunctions against non-individuals in Travis County as a costsaving measure to the State. Sections of the original bill were removed which had originally allowed the Board to pursue anonymous complaints and commission peace. A new section was added that would allow the reduction of certain fees for persons who were disabled and unemployed as an engineer.