By Van de Putte H.B. No. 727
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, Chapter 752, Acts of the 69th
1-5 Legislature, Regular Session, 1985 (Article 4512k, Vernon's Texas
1-6 Civil Statutes), is amended to read as follows:
1-7 Sec. 1. DEFINITIONS. In this Act:
1-8 (1) "Massage therapy" means the manipulation of soft
1-9 tissue. The term includes, but is not limited to, effleurage
1-10 (stroking), petrissage (kneading), tapotement (percussion),
1-11 compression, direct pressure, vibration, shaking, rocking,
1-12 friction, nerve strokes, assisted stretching, and Swedish
1-13 gymnastics, either by use of the hand, finger, elbow, knee, or foot
1-14 or with mechanical or electrical apparatus for the purpose of body
1-15 massage. Massage therapy may include the use of skin lubricants
1-16 [oil], salt glows, hydrotherapy, cryotherapy, heat lamps, hot and
1-17 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 body rub, or any derivation of those terms. Massage therapy is a
1-21 health care service when the massage therapy is for therapeutic
1-22 purposes. As used in the Act, the terms "therapy" and
1-23 "therapeutic" do not include diagnosis, the treatment of illness or
1-24 disease, or any service or procedure for which a license to
2-1 practice medicine, chiropractic, physical therapy, or podiatry is
2-2 required by law. Massage therapy does not constitute the practice
2-3 of chiropractic or physical therapy or osteopathic medicine or the
2-4 activities of an athletic trainer.
2-5 (2) "Massage therapist" means an individual who is
2-6 registered under this Act, is registered to use the title
2-7 "registered massage therapist" and the designation "R.M.T.," and
2-8 offers [practices or administers] massage therapy services as
2-9 provided by this Act to a client [patron] of either gender for
2-10 compensation. The term includes a registered massage therapist,
2-11 therapeutic massage practitioner, massage technician, masseur,
2-12 masseuse, myo-therapist, body massager, body rubber, or any
2-13 derivation of those titles.
2-14 (3) "Massage therapy instructor" means an individual
2-15 who is a registered massage therapist, who instructs [is
2-16 instructing] one or more students at a massage school in the
2-17 massage therapy portion of the 300-hour course of instruction
2-18 required for registration as a massage therapist under this Act
2-19 [therapy, and whose instruction is approved by the department].
2-20 (4) "Massage establishment" means any place of
2-21 business that advertises massage therapy or offers massage therapy
2-22 as a service.
2-23 (5) "Department" means the Texas Department of Health.
2-24 (6) "Board" means the Texas Board of Health.
2-25 [(7) "Advisory Council" means the Advisory Council on
2-26 Massage Therapy.]
2-27 (7) [(8)] "Person" means an individual, partnership,
3-1 corporation, association, or other legal entity.
3-2 (8) [(9)] "Massage school" means an entity or
3-3 organization registered with the department that has [with] at
3-4 least two instructors that teaches, at a minimum, the 300-hour
3-5 course of instruction required for registration as a massage
3-6 therapist under this Act.
3-7 (9) [(10)] "Instructor" means an individual who
3-8 instructs one or more students at a massage school in any section
3-9 of the 300-hour course of instruction required for registration as
3-10 a massage therapist under this Act.
3-11 (10) [(11)] "Applicant" means a person, including a
3-12 massage school, an independent [a] massage therapy instructor, a
3-13 massage therapy instructor, or a massage establishment, that
3-14 applies for registration under this Act.
3-15 (11) [(12)] "Examiner" means a registered massage
3-16 therapist who administers the practical portion of the state
3-17 examination to applicants for registration as massage therapists.
3-18 (12) [(13)] "Internship program" means a program
3-19 provided by a massage school or an independent massage therapy
3-20 instructor and supervised by a massage therapy instructor in which
3-21 a student provides massage therapy to the general public. The
3-22 massage therapy may be for compensation in an amount set by the
3-23 massage school or the independent massage therapy instructor and
3-24 paid to the massage school or the independent massage therapy
3-25 instructor.
3-26 (13) [(14)] "Sexually oriented business" has the
3-27 meaning assigned by Section 243.002, Local Government Code, unless
4-1 another meaning applies under local law.
4-2 (14) "Commissioner" means the commissioner of public
4-3 health.
4-4 (15) "Independent massage therapy instructor" means an
4-5 individual who is:
4-6 (A) registered as a massage therapist; and
4-7 (B) the sole person responsible for instructing
4-8 one or more students in the 300-hour course of instruction required
4-9 for registration as a massage therapist under this Act.
4-10 (16) "Advanced program" means course work or a course
4-11 of instruction offered by a massage school or independent massage
4-12 therapy instructor, other than the 300-hour course of instruction
4-13 required for registration as a massage therapist under this Act,
4-14 that serves to enhance the knowledge or skills of a massage
4-15 therapist.
4-16 (17) "Advanced program presenter" means a person who
4-17 provides instruction in an advanced program.
4-18 SECTION 2. Chapter 752, Acts of the 69th Legislature,
4-19 Regular Session, 1985 (Article 4512k, Vernon's Texas Civil
4-20 Statutes), is amended by adding Section 1B to read as follows:
4-21 Sec. 1B. REGISTRATION REQUIRED. A person may not practice
4-22 massage therapy or represent to the public that the person
4-23 practices massage therapy unless the person is registered under
4-24 this Act or exempt under Section 4 of this Act. A person may not
4-25 use the title of "massage therapist" or "registered massage
4-26 therapist" or the initials "R.M.T." unless the person is registered
4-27 as provided under this Act.
5-1 SECTION 3. Section 2, Chapter 752, Acts of the 69th
5-2 Legislature, Regular Session, 1985 (Article 4512k, Vernon's Texas
5-3 Civil Statutes), is amended to read as follows:
5-4 Sec. 2. MASSAGE THERAPIST REGISTRATION REQUIREMENTS. (a) An
5-5 applicant for registration as a massage therapist must:
5-6 (1) submit a written application to the department;
5-7 (2) provide to the department the evidence required
5-8 under Section 11 of this Act; and
5-9 (3) pay the appropriate fees to the department
5-10 [individual who practices as a massage therapist, or who represents
5-11 that the individual is a massage therapist, must register as
5-12 provided by this Act, unless the individual is exempt from
5-13 registration. A massage therapist may not perform massage therapy,
5-14 whether or not for compensation, at or for a sexually oriented
5-15 business].
5-16 (b) A person applying to take the examination required for
5-17 registration as a massage therapist [An individual who registers as
5-18 a massage therapist under this Act] must present evidence
5-19 [satisfactory to the board] that the person:
5-20 (1) has successfully [satisfactorily] completed an
5-21 approved 300-hour course of instruction required for registration
5-22 as a massage therapist under this Act, which may have been provided
5-23 [massage therapy studies in a 300 hour, supervised course of
5-24 instruction provided by a massage therapy instructor, by a massage
5-25 school registered by the department, by a state approved
5-26 educational institution, or] by an independent massage therapy
5-27 instructor [any combination of instructors] or a massage school,
6-1 or by both [schools, in which 125 hours are dedicated to the study
6-2 of Swedish massage therapy techniques taught by a massage therapy
6-3 instructor, 50 hours to the study of anatomy, 25 hours to the study
6-4 of physiology, 15 hours to the study of hydrotherapy, 15 hours to
6-5 the study of business practices and professional ethics standards,
6-6 20 hours to the study of health and hygiene, and 50 hours to an
6-7 internship program];
6-8 (2) is licensed, certified, or registered to practice
6-9 [as a] massage therapy [therapist] in another jurisdiction [state
6-10 or country] that has and maintains standards and requirements of
6-11 practice and licensing, certification, or registration that
6-12 substantially conform to those of this state, as determined by the
6-13 department; or
6-14 (3) has practiced massage therapy as a profession for
6-15 not less than five years in another jurisdiction [state or country]
6-16 that does not have or maintain standards and requirements of
6-17 practice and licensing, certification, or registration that
6-18 substantially conform to those of this state, as determined by the
6-19 department.
6-20 (c) The 300-hour course of instruction in massage therapy
6-21 studies required for registration under this Act must include
6-22 courses in the subjects of Swedish massage therapy techniques,
6-23 anatomy, physiology, hydrotherapy, business practices, professional
6-24 ethics standards, health, and hygiene. The board shall adopt rules
6-25 that specify general course content and the minimum number of hours
6-26 of instruction required in each of the subjects. An internship of
6-27 not less than 40 hours of hands-on massage is required within the
7-1 300-hour course of instruction.
7-2 (d) Only course work taught by a massage school or
7-3 independent massage therapy instructor may qualify for credit under
7-4 Subsection (b)(1) of this section, except that the department may
7-5 accept massage therapy course work taken outside of this state to
7-6 satisfy one or more of the subject requirements contained in
7-7 Subsection (c) of this section if the out-of-state course work is
7-8 equivalent to the course work required by the department.
7-9 (e) [(c)] A student enrolled in a 300-hour [state-approved]
7-10 course of instruction required for registration as a massage
7-11 therapist under this Act [that consists of a minimum of 300 hours]
7-12 is exempt from registration under this Act if the student provides
7-13 massage therapy as part of an internship program or for no
7-14 compensation.
7-15 (f) A massage therapist may not perform massage therapy at
7-16 or for a sexually oriented business regardless of whether the
7-17 massage therapist receives compensation or not.
7-18 SECTION 4. Section 2A, Chapter 752, Acts of the 69th
7-19 Legislature, Regular Session, 1985 (Article 4512k, Vernon's Texas
7-20 Civil Statutes), is amended to read as follows:
7-21 Sec. 2A. MASSAGE SCHOOLS, INDEPENDENT MASSAGE THERAPY
7-22 INSTRUCTORS, AND INTERNSHIPS. (a) A person [A massage school] that
7-23 offers[, at a minimum,] the 300-hour course of instruction
7-24 required for registration as a massage therapist or an advanced
7-25 program must register with the department as a massage school or
7-26 as an independent massage therapy instructor. A massage school or
7-27 an independent massage therapy instructor must meet the minimum
8-1 standards of operation established by board rule and may only
8-2 provide a 300-hour course of instruction that is approved by the
8-3 department.
8-4 (b) A massage therapy instructor employed or retained by a
8-5 massage school must register with the department as provided by
8-6 this Act.
8-7 (c) An instructor employed or retained by a massage school
8-8 must meet the minimum requirements established by board rule.
8-9 (d) An internship program shall be conducted on the school
8-10 grounds or in a clinic or classroom setting provided by the massage
8-11 school or an independent massage therapy instructor.
8-12 (e) A student must successfully complete the requirements of
8-13 the first 250 hours of education [training] at the massage school
8-14 or with the independent massage therapy instructor before being
8-15 eligible to enter the internship program.
8-16 (f) A student who is participating in an internship program
8-17 may:
8-18 (1) make an appointment with a client;
8-19 (2) interview a client;
8-20 (3) perform massage therapy;
8-21 (4) collect and review a client evaluation with the
8-22 student's supervisor; and
8-23 (5) perform other tasks necessary to the business of
8-24 providing massage therapy to the public.
8-25 (g) A student who is participating in an internship program
8-26 conducted by a massage school must be under the supervision and
8-27 direction of a massage therapy instructor during the hours that the
9-1 student is working in the program. A student who is participating
9-2 in an internship program conducted by an independent massage
9-3 therapy instructor must be under the supervision of that instructor
9-4 during the hours the student is working in the internship program.
9-5 (h) An internship program shall provide a student with a
9-6 minimum of 40 hours of hands-on massage therapy experience.
9-7 (i) An internship program must meet the qualifications
9-8 established by the board [with the advice of the advisory council].
9-9 (j) The department shall regulate all [school] hours
9-10 included within a 300-hour course of instruction provided by a
9-11 massage school or an independent [a] massage therapy instructor.
9-12 (k) A massage school or an independent [a] massage therapy
9-13 instructor may not offer a course of instruction for registration
9-14 as a massage therapist which requires the successful completion of
9-15 more course hours than are required for registration as a massage
9-16 therapist under this chapter.
9-17 (l) A massage school or an independent massage therapy
9-18 instructor [registered under this chapter] must give each
9-19 prospective student a notice that clearly states the number of
9-20 course hours which must be successfully completed before a student
9-21 can apply to register as a massage therapist under this chapter.
9-22 (m) The notice required by Subsection (l) of this section
9-23 must be given to each prospective student at a time and in a manner
9-24 that provides the student with sufficient opportunity to read the
9-25 notice and discuss it with massage school officials or with the
9-26 independent massage therapy instructor, if necessary for
9-27 understanding and clarity, before signing an enrollment contract
10-1 and before the massage school or the independent massage therapy
10-2 instructor accepts the student in a course of study.
10-3 (n) A massage school or independent massage therapy
10-4 instructor shall notify the department of any advanced program to
10-5 be offered by the school or instructor for placement on the massage
10-6 therapy advanced program registry. The credentials of the advanced
10-7 program presenter must be submitted to the department with the
10-8 notification.
10-9 (o) An advanced program presenter must have the experience
10-10 and credentials necessary to provide effective instruction in the
10-11 topic covered in the advanced program. An advanced program
10-12 presenter is not required to be a registered massage therapist
10-13 under this Act.
10-14 SECTION 5. Section 4, Chapter 752, Acts of the 69th
10-15 Legislature, Regular Session, 1985 (Article 4512k, Vernon's Texas
10-16 Civil Statutes), is amended to read as follows:
10-17 Sec. 4. EXEMPTIONS. This Act does not apply to:
10-18 (1) a person who is licensed in this state as a
10-19 physician, chiropractor, physical therapist, nurse, cosmetologist,
10-20 athletic trainer, or member of another similar profession that is
10-21 subject to state licensing, while the person is practicing within
10-22 the scope of the license;
10-23 (2) an employer that sponsors a course of instruction,
10-24 other than the 300-hour course of instruction required for
10-25 registration as a massage therapist, for training the employer's
10-26 employees and for which no tuition is charged to the employees; or
10-27 (3) a trade, business, or professional organization
11-1 that sponsors a course of instruction for members or guests of the
11-2 organization at a meeting or convention if the course is not
11-3 offered for a fee [a school approved by the Central Education
11-4 Agency or that is otherwise approved by the state; or]
11-5 [(3) an instructor who is otherwise approved by the
11-6 state to teach in an area of study included in the required course
11-7 of instruction].
11-8 SECTION 6. Sections 7(a), (b), (d), (e), and (f), Chapter
11-9 752, Acts of the 69th Legislature, Regular Session, 1985 (Article
11-10 4512k, Vernon's Texas Civil Statutes), are amended to read as
11-11 follows:
11-12 (a) The board[, with the advice of the advisory council,]
11-13 shall adopt rules consistent with this Act, including rules
11-14 relating to the definition of "unprofessional conduct" as that term
11-15 is used by Section 11(a)(4) of this Act, as necessary for the
11-16 performance of its duties under this Act. The board shall adopt the
11-17 rules in the manner provided by Chapter 2001, Government Code [the
11-18 Administrative Procedure and Texas Register Act (Article 6252-13a,
11-19 Vernon's Texas Civil Statutes)].
11-20 (b) The department shall administer this Act and may adopt
11-21 fees for those regulated by this Act in amounts necessary to cover
11-22 the costs of administering this Act.
11-23 (d) The department shall prepare and administer a state
11-24 examination as required to implement this Act. The department may
11-25 hire examiners [with the recommendation of the advisory council].
11-26 An examiner is entitled to compensation and the state per diem
11-27 allowance as set by the General Appropriations Act for
12-1 transportation and related expenses incurred by the examiner in
12-2 engaging in the business of the department.
12-3 (e) [The board and department shall cooperate with the
12-4 advisory council in the administration of this Act, and shall make
12-5 available to the advisory council reports, statistical information,
12-6 and other information as reasonably necessary for the advisory
12-7 council to perform its duties under this Act.]
12-8 [(f)] The department shall regulate all massage school and
12-9 independent massage therapy instructor hours offered as part of the
12-10 300-hour course of instruction required for registration as a
12-11 massage therapist.
12-12 SECTION 7. Section 7C, Chapter 752, Acts of the 69th
12-13 Legislature, Regular Session, 1985 (Article 4512k, Vernon's Texas
12-14 Civil Statutes), is amended to read as follows:
12-15 Sec. 7C. BOARD RULES FOR INDEPENDENT [A] MASSAGE THERAPY
12-16 INSTRUCTORS [INSTRUCTOR]. The board rules relating to an
12-17 independent [a] massage therapy instructor must contain minimum
12-18 standards for:
12-19 (1) the issuance, denial, renewal, suspension,
12-20 revocation, or probation of a registration under this Act;
12-21 (2) the qualifications of an independent [a] massage
12-22 therapy instructor;
12-23 (3) the supervision of a student by an independent [a]
12-24 massage therapy instructor;
12-25 (4) the maximum number of hours a student may
12-26 accumulate in an internship program under the supervision of an
12-27 independent [a] massage therapy instructor without being required
13-1 to be registered under this Act;
13-2 (5) the equipment essential to the education, health,
13-3 and safety of students and the public;
13-4 (6) the sanitary and hygienic conditions of the
13-5 physical environment in which an independent [a] massage therapy
13-6 instructor teaches;
13-7 (7) the provision of massage therapy by a student or
13-8 an independent [a] massage therapy instructor;
13-9 (8) the educational and clinical records kept by an
13-10 independent [a] massage therapy instructor;
13-11 (9) the curriculum taught and educational material
13-12 used by an independent [a] massage therapy instructor;
13-13 (10) the inspection of the records, equipment, and
13-14 physical environment of an independent [a] massage therapy
13-15 instructor; and
13-16 (11) any other aspect of an independent [a] massage
13-17 therapy instructor's instruction or operation of any portion of the
13-18 course of instruction required for registration as a massage
13-19 therapist.
13-20 SECTION 8. Section 11, Chapter 752, Acts of the 69th
13-21 Legislature, Regular Session, 1985 (Article 4512k, Vernon's Texas
13-22 Civil Statutes), is amended to read as follows:
13-23 Sec. 11. REGISTRATION, DENIAL, PROBATION, SUSPENSION, OR
13-24 REVOCATION. (a) The department may refuse to issue a registration
13-25 certificate to an applicant, may suspend or revoke a registration
13-26 certificate, or may place a registered person, including a massage
13-27 school, an independent massage therapy instructor, a massage
14-1 therapy instructor, or a massage establishment, on probation for
14-2 any of the following causes:
14-3 (1) obtaining a certificate by means of fraud,
14-4 misrepresentation, or concealment of material facts;
14-5 (2) selling, bartering, or offering [offer] to sell or
14-6 barter a registration certificate;
14-7 (3) violating any rule adopted by the board;
14-8 (4) engaging in unprofessional conduct that has
14-9 endangered or is likely to endanger the health, welfare, or safety
14-10 of the public as defined by the rules established by the board;
14-11 (5) violating a regulation adopted by a political
14-12 subdivision under Chapter 243, Local Government Code; [or]
14-13 (6) violating any provisions of this Act;
14-14 (7) using drugs or alcohol to an extent that affects
14-15 professional competence;
14-16 (8) having been convicted of, entered a plea of no
14-17 contest or guilty to, or received deferred adjudication or
14-18 community supervision for an offense involving prostitution or
14-19 another sexual offense;
14-20 (9) in the case of a massage school, having conduct
14-21 occur on the premises of the school of which the owner or operator
14-22 of the massage school knew or had reason to know that results in a
14-23 person's conviction for, a plea of no contest or guilty to, or the
14-24 receipt of deferred adjudication or community supervision for an
14-25 offense involving prostitution or another sexual offense;
14-26 (10) having a certificate of registration, license, or
14-27 other professional permit issued by another jurisdiction denied,
15-1 revoked, suspended, or subjected to other disciplinary action;
15-2 (11) being judged mentally incompetent by a court of
15-3 competent jurisdiction; or
15-4 (12) knowingly providing, or offering to provide,
15-5 diagnosis, or the treatment of illness, injury, or disease.
15-6 (b) In determining whether a conviction, plea, deferred
15-7 adjudication, or community supervision under Subsection (a)(8) or
15-8 (a)(9) of this section shall be the basis to deny, probate,
15-9 suspend, or revoke a certificate of registration, the department
15-10 shall consider:
15-11 (1) the seriousness of the crime;
15-12 (2) the relationship of the crime to the purpose for
15-13 requiring a registration certificate;
15-14 (3) the extent to which holding a registration
15-15 certificate may offer an opportunity to engage in further criminal
15-16 activity of the same type in which the person was previously
15-17 involved; and
15-18 (4) the relationship of the crime to the ability,
15-19 capacity, or fitness required to act as a massage therapist,
15-20 independent massage therapy instructor, massage therapy instructor,
15-21 or massage school.
15-22 (c) In addition to the factors considered under Subsection
15-23 (b) of this section, the department, in determining the fitness of
15-24 a person under Subsection (a)(8) or (a)(9) of this section, shall
15-25 consider the following:
15-26 (1) the extent and nature of the person's past
15-27 criminal activity;
16-1 (2) the age of the person at the time of the crime;
16-2 (3) the amount of time that has elapsed since the
16-3 person's last criminal activity;
16-4 (4) the conduct and work activity of the person before
16-5 and after the criminal activity;
16-6 (5) evidence of the person's rehabilitation or efforts
16-7 at rehabilitation while incarcerated or after release; and
16-8 (6) other evidence of the person's present fitness,
16-9 including letters of recommendation from prosecution, law
16-10 enforcement, and correctional officers who prosecuted, arrested, or
16-11 had custodial responsibility for the person or the sheriff, chief
16-12 of police where the person resides, or any other person.
16-13 (d) It is the responsibility of the applicant or registrant,
16-14 to the extent possible, to provide to the department the
16-15 recommendations of prosecution, law enforcement, and correctional
16-16 authorities. The applicant or registrant shall also furnish proof
16-17 in the form required by the department that the person has
16-18 maintained a record of steady employment, has supported the
16-19 person's dependents, has maintained a record of good conduct, and
16-20 has paid all outstanding court costs, supervision fees, fines, and
16-21 restitution ordered in any criminal case.
16-22 (e) A conviction, a plea, deferred adjudication, or
16-23 community supervision may be considered by the department under
16-24 Subsection (a)(8) or (a)(9) of this section notwithstanding
16-25 Sections 5(c) and 20(a), Article 42.12, Code of Criminal Procedure
16-26 [An individual who has been convicted of, entered a plea of nolo
16-27 contendere or guilty to, or received deferred adjudication to
17-1 crimes or offenses involving prostitution or sexual offenses is
17-2 ineligible for registration as a massage therapist, massage therapy
17-3 instructor, massage school, or massage establishment. The
17-4 department shall revoke the registration of a person registered as
17-5 a massage therapist or massage therapy instructor who is convicted
17-6 of, enters a plea of nolo contendere or guilty to, or receives
17-7 deferred adjudication to a crime or offense involving prostitution
17-8 or other sexual offenses, or who the department determines has
17-9 practiced or administered massage therapy at or for a sexually
17-10 oriented business. The department shall revoke the registration of
17-11 a person registered as a massage school or massage establishment if
17-12 the department determines that the school or establishment is a
17-13 sexually oriented business, or that a crime or offense involving
17-14 prostitution or other sexual offenses and resulting in a
17-15 conviction, or to which a plea of nolo contendere or guilty was
17-16 entered or deferred adjudication was received, has occurred on the
17-17 premises of the school or establishment].
17-18 (f) [(c)] A person whose application for registration is
17-19 denied, or whose registration is placed on probation, suspended, or
17-20 revoked is entitled to a hearing before the department if the
17-21 person submits a written request to the department. Hearings are
17-22 governed by department rules for a contested hearing and by Chapter
17-23 2001, Government Code [the Administrative Procedure and Texas
17-24 Register Act (Article 6252-13a, Vernon's Texas Civil Statutes)].
17-25 [(d) A person convicted of a violation of this Act is
17-26 ineligible for registration as a massage therapist, massage therapy
17-27 instructor, massage school, or massage establishment for a period
18-1 of five years.]
18-2 SECTION 9. Chapter 752, Acts of the 69th Legislature,
18-3 Regular Session, 1985 (Article 4512k, Vernon's Texas Civil
18-4 Statutes), is amended by adding Section 11A to read as follows:
18-5 Sec. 11A. ADMINISTRATIVE PENALTY. (a) The department may
18-6 impose an administrative penalty against a person registered under
18-7 this Act who violates this Act or a rule or order adopted under
18-8 this Act.
18-9 (b) The penalty for a violation may be in an amount not to
18-10 exceed $1,000. Each day that a violation continues or occurs is a
18-11 separate violation for the purposes of imposing a penalty.
18-12 (c) The amount of the penalty shall be based on:
18-13 (1) the seriousness of the violation, including the
18-14 nature, circumstances, extent, and gravity of any prohibited acts,
18-15 and the hazard or potential hazard created to the health, safety,
18-16 or welfare of the public;
18-17 (2) the history of any previous violations;
18-18 (3) the amount necessary to deter future violations;
18-19 (4) efforts to correct the violation; and
18-20 (5) any other matter that justice may require.
18-21 (d) If the department determines that a violation has
18-22 occurred, the department may issue a report to the commissioner
18-23 that states the facts on which the determination is based. The
18-24 department shall make a recommendation on the imposition of a
18-25 penalty, including a recommendation on the amount of the penalty.
18-26 (e) Within 14 days after the date on which the report is
18-27 issued, the department shall give written notice of the report to
19-1 the person who committed the alleged violation. The notice may be
19-2 given by certified mail. The notice must include a brief summary
19-3 of the alleged violation and a statement of the amount of the
19-4 recommended penalty and must inform the person that the person has
19-5 a right to a hearing on the occurrence of the violation, the amount
19-6 of the penalty, or both the occurrence of the violation and the
19-7 amount of the penalty.
19-8 (f) Within 20 days after the date the person receives the
19-9 notice, the person in writing may accept the determination and
19-10 recommended penalty of the department or may make a written request
19-11 for a hearing on the occurrence of the violation, the amount of the
19-12 penalty, or both the occurrence of the violation and the amount of
19-13 the penalty.
19-14 (g) If the person accepts the determination and recommended
19-15 penalty of the department, the department shall issue an order and
19-16 impose the recommended penalty.
19-17 (h) If the person requests a hearing or fails to respond
19-18 timely to the notice, the department shall set a hearing and give
19-19 notice of the hearing to the person. The hearing shall be held by
19-20 an administrative law judge of the State Office of Administrative
19-21 Hearings. The administrative law judge shall make findings of fact
19-22 and conclusions of law and promptly issue to the department a
19-23 proposal for a decision about the occurrence of the violation and
19-24 the amount of the penalty. Based on the findings of fact,
19-25 conclusions of law, and proposal for a decision, the department by
19-26 order may find that a violation has occurred and impose a penalty
19-27 or may find that no violation occurred.
20-1 (i) The notice of the department's order given to the person
20-2 under Chapter 2001, Government Code, must include a statement of
20-3 the right of the person to judicial review of the order.
20-4 (j) Within 30 days after the date the department's order is
20-5 final as provided by Section 2001.144, Government Code, the person
20-6 shall:
20-7 (1) pay the amount of the penalty;
20-8 (2) pay the amount of the penalty and file a petition
20-9 for judicial review contesting the occurrence of the violation, the
20-10 amount of the penalty, or both the occurrence of the violation and
20-11 the amount of the penalty; or
20-12 (3) without paying the amount of the penalty, file a
20-13 petition for judicial review contesting the occurrence of the
20-14 violation, the amount of the penalty, or both the occurrence of the
20-15 violation and the amount of the penalty.
20-16 (k) Within the 30-day period, a person who acts under
20-17 Subsection (j)(3) of this section may:
20-18 (1) stay enforcement of the penalty by:
20-19 (A) paying the amount of the penalty to the
20-20 court for placement in an escrow account; or
20-21 (B) giving to the court a supersedeas bond
20-22 approved by the court for the amount of the penalty and that is
20-23 effective until all judicial review of the department's order is
20-24 final; or
20-25 (2) request the court to stay enforcement of the
20-26 penalty by:
20-27 (A) filing with the court a sworn affidavit of
21-1 the person stating that the person is financially unable to pay the
21-2 amount of the penalty and is financially unable to give the
21-3 supersedeas bond; and
21-4 (B) giving a copy of the affidavit to the
21-5 department by certified mail.
21-6 (l) If the department receives a copy of an affidavit under
21-7 Subsection (k)(2) of this section, the department may file with the
21-8 court within five days after the date the copy is received a
21-9 contest to the affidavit. The court shall hold a hearing on the
21-10 facts alleged in the affidavit as soon as practicable and shall
21-11 stay the enforcement of the penalty on finding that the alleged
21-12 facts are true. The person who files an affidavit has the burden
21-13 of proving that the person is financially unable to pay the amount
21-14 of the penalty and to give a supersedeas bond.
21-15 (m) If the person does not pay the amount of the penalty and
21-16 the enforcement of the penalty is not stayed, the department may
21-17 refer the matter to the attorney general for collection of the
21-18 penalty.
21-19 (n) Judicial review of the order of the department:
21-20 (1) is instituted by filing a petition as provided by
21-21 Section 2001.176, Government Code; and
21-22 (2) is under the substantial evidence rule.
21-23 (o) If the court sustains the occurrence of the violation,
21-24 the court may uphold or reduce the amount of the penalty and order
21-25 the person to pay the full or reduced amount of the penalty. If
21-26 the court does not sustain the occurrence of the violation, the
21-27 court shall order that no penalty is owed.
22-1 (p) When the judgment of the court becomes final, the court
22-2 shall proceed under this subsection. If the person paid the amount
22-3 of the penalty and if that amount is reduced or is not upheld by
22-4 the court, the court shall order that the appropriate amount plus
22-5 accrued interest be remitted to the person. The rate of interest
22-6 is the rate charged on loans to depository institutions by the New
22-7 York Federal Reserve Bank, and the interest shall be paid for the
22-8 period beginning on the date the penalty was paid and ending on the
22-9 date the penalty is remitted. If the person gave a supersedeas
22-10 bond and if the amount of the penalty is not upheld by the court,
22-11 the court shall order the release of the bond. If the person gave
22-12 a supersedeas bond and if the amount of the penalty is reduced, the
22-13 court shall order the release of the bond after the person pays the
22-14 amount.
22-15 (q) A penalty collected under this section shall be remitted
22-16 to the comptroller for deposit in the general revenue fund.
22-17 (r) All proceedings under this section are subject to
22-18 Chapter 2001, Government Code.
22-19 SECTION 10. Section 14, Chapter 752, Acts of the 69th
22-20 Legislature, Regular Session, 1985 (Article 4512k, Vernon's Texas
22-21 Civil Statutes), is amended to read as follows:
22-22 Sec. 14. EFFECT ON LOCAL REGULATION. (a) This [Except as
22-23 provided by Subsection (b) of this section, this] Act supersedes
22-24 any regulation adopted by a political subdivision of this state
22-25 relating to the licensing or regulation of massage therapists or
22-26 massage establishments.
22-27 (b) [This Act does not affect:]
23-1 [(1) local regulations relating to zoning requirements
23-2 for massage establishments or other similar regulations;]
23-3 [(2) any local regulations that authorize or require
23-4 an investigation into the background of an owner or operator of, or
23-5 an investor in, a massage establishment; or]
23-6 [(3) any local regulations that do not relate directly
23-7 to the practice of massage therapy as performed by a registered
23-8 massage therapist including those professions listed under Section
23-9 4 of this Act while performing duties under their respective
23-10 licensing Acts while working with a registered massage therapist.]
23-11 [(c)] Except as provided by Chapter 243, Local Government
23-12 Code, a political subdivision may not adopt regulations [of the
23-13 type listed in Subsection (b) of this section] that are more
23-14 restrictive for massage therapists or massage establishments than
23-15 for other health care professionals or establishments.
23-16 SECTION 11. Sections 3, 8, 9, and 16, Chapter 752, Acts of
23-17 the 69th Legislature, Regular Session, 1985 (Article 4512k,
23-18 Vernon's Texas Civil Statutes), are repealed.
23-19 SECTION 12. (a) This Act takes effect September 1, 1997.
23-20 (b) A massage therapy instructor, as that term was defined
23-21 before the effective date of this Act, that taught a course of
23-22 instruction under Chapter 752, Acts of the 69th Legislature,
23-23 Regular Session, 1985 (Article 4512k, Vernon's Texas Civil
23-24 Statutes), independent of a massage school before the effective
23-25 date of this Act, must register as an independent massage therapy
23-26 instructor to continue teaching independently of a massage school
23-27 on or after January 1, 1998. A person or school required by this
24-1 Act to be registered under Chapter 752, Acts of the 69th
24-2 Legislature, Regular Session, 1985 (Article 4512k, Vernon's Texas
24-3 Civil Statutes), that was previously exempt under Section 4,
24-4 Chapter 752, Acts of the 69th Legislature, Regular Session, 1985
24-5 (Article 4512k, Vernon's Texas Civil Statutes), as that section
24-6 existed before the effective date of this Act, is required to be
24-7 registered as provided by this Act not later than March 1, 1998.
24-8 (c) A rule of the Texas Board of Health adopted under
24-9 Chapter 752, Acts of the 69th Legislature, Regular Session, 1985
24-10 (Article 4512k, Vernon's Texas Civil Statutes), that is in effect
24-11 on the effective date of this Act remains in effect until the board
24-12 adopts rules under Chapter 752, Acts of the 69th Legislature,
24-13 Regular Session, 1985 (Article 4512k, Vernon's Texas Civil
24-14 Statutes), as amended by this Act, unless the rule is in conflict
24-15 with this Act.
24-16 SECTION 13. The importance of this legislation and the
24-17 crowded condition of the calendars in both houses create an
24-18 emergency and an imperative public necessity that the
24-19 constitutional rule requiring bills to be read on three several
24-20 days in each house be suspended, and this rule is hereby suspended.