1-1 By: Van de Putte (Senate Sponsor - Gallegos) H.B. No. 727
1-2 (In the Senate - Received from the House May 6, 1997;
1-3 May 7, 1997, read first time and referred to Committee on Health
1-4 and Human Services; May 17, 1997, reported adversely, with
1-5 favorable Committee Substitute by the following vote: Yeas 9, Nays
1-6 0; May 17, 1997, sent to printer.)
1-7 COMMITTEE SUBSTITUTE FOR H.B. No. 727 By: Gallegos
1-8 A BILL TO BE ENTITLED
1-9 AN ACT
1-10 relating to the regulation of massage therapy; providing penalties.
1-11 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-12 SECTION 1. Section 1, Chapter 752, Acts of the 69th
1-13 Legislature, Regular Session, 1985 (Article 4512k, Vernon's Texas
1-14 Civil Statutes), is amended to read as follows:
1-15 Sec. 1. Definitions. In this Act:
1-16 (1) "Massage therapy" means the manipulation of soft tissue.
1-17 The term includes, but is not limited to, effleurage (stroking),
1-18 petrissage (kneading), tapotement (percussion), compression, direct
1-19 pressure, vibration, shaking, rocking, friction, nerve strokes,
1-20 assisted stretching, and Swedish gymnastics, either by use of the
1-21 hand, finger, elbow, knee or foot or with mechanical or electrical
1-22 apparatus for the purpose of body massage. Massage therapy may
1-23 include the use of skin lubricants [oil], salt glows, hydrotherapy,
1-24 cryotherapy, heat lamps, hot and cold packs, and balneotherapy
1-25 [tub, shower, or cabinet baths]. Equivalent terms for massage
1-26 therapy are massage, therapeutic massage, massage technology,
1-27 myo-therapy, body massage, bodywork, body rub or any derivation of
1-28 those terms. Massage therapy is a health care service when the
1-29 massage therapy is used for therapeutic purposes. As used in the
1-30 Act, the terms "therapy" and "therapeutic" do not include
1-31 diagnosis, the treatment of illness or disease, or any service or
1-32 procedure for which a license to practice medicine, chiropractic,
1-33 physical therapy, occupational therapy, or podiatry is required by
1-34 law. Massage therapy does not constitute the practice of
1-35 chiropractic, physical therapy, occupational therapy, or
1-36 osteopathic medicine, or the activities of an athletic trainer.
1-37 (2) "Massage therapist" means an individual who is
1-38 registered under this Act, is registered to use the title
1-39 "registered massage therapist" and the designation "R.M.T.", and
1-40 offers [practices or administers] massage therapy services as
1-41 provided by this Act to a [patron] client of either gender for
1-42 compensation. The term includes a registered massage therapist,
1-43 therapeutic massage practitioner, massage technician, masseur,
1-44 masseuse, myo-therapist, body massager, body rubber, or any
1-45 derivation of those titles.
1-46 (3) "Massage therapy instructor" means an individual who is
1-47 a registered massage therapist, who instructs [is instructing] one
1-48 or more students at a massage school in the Swedish massage therapy
1-49 technique or internship sections of the 300-hour course of
1-50 instruction required for registration as a massage therapist under
1-51 this Act [therapy,] and whose instruction is approved by the
1-52 department.
1-53 (4) "Massage establishment" means any place of business that
1-54 advertises massage therapy or offers massage therapy as a service.
1-55 (5) "Department" means the Texas Department of Health.
1-56 (6) "Board" means the Texas Board of Health.
1-57 [(7) "Advisory Council" means the Advisory Council on
1-58 Massage Therapy.]
1-59 (7) [(8)] "Person" means an individual, partnership,
1-60 corporation, association, or other legal entity.
1-61 (8) [(9)] "Massage school" means an entity or organization
1-62 registered with the department that has [with] at least two
1-63 instructors that teaches, at a minimum, the 300-hour course of
1-64 instruction required for registration as a massage therapist under
2-1 this Act.
2-2 (9) [(10)] "Instructor" means an individual who instructs
2-3 one or more students at a massage school in any section of the
2-4 300-hour course of instruction required for registration as a
2-5 massage therapist under this Act other than the Swedish massage
2-6 technique or internship sections.
2-7 (10) [(11)] "Applicant" means a person, including a massage
2-8 school, an independent [a] massage therapy instructor, a massage
2-9 therapy instructor, or a massage establishment, that applies for
2-10 registration under this Act.
2-11 (11) [(12)] "Examiner" means a registered massage therapist
2-12 who administers the practical portion of the state examination to
2-13 applicants for registration as massage therapists.
2-14 (12) [(13)] "Internship program" means a program provided by
2-15 a massage school or an independent massage therapy instructor and
2-16 supervised by a massage therapy instructor in which a student
2-17 provides massage therapy to the general public. The massage
2-18 therapy may be for compensation in an amount set by the massage
2-19 school or the independent massage therapy instructor and paid to
2-20 the massage school or the independent massage therapy instructor.
2-21 (13) [(14)] "Sexually oriented business" has the meaning
2-22 assigned by Section 243.002, Local Government Code.
2-23 (14) "Commissioner" means the commissioner of public health.
2-24 (15) "Independent massage therapy instructor" means an
2-25 individual who is:
2-26 (A) registered as a massage therapist; and
2-27 (B) the sole person responsible for instructing one or
2-28 more students in the 300-hour course of instruction required for
2-29 registration as a massage therapist under this Act and whose
2-30 instruction is approved by the department.
2-31 (16) "Advanced program" means course work or a course of
2-32 instruction offered by a massage school or independent massage
2-33 therapy instructor, other than the 300-hour course of instruction
2-34 required for registration as a massage therapist under this Act,
2-35 that serves to enhance the knowledge or skills of a massage
2-36 therapist.
2-37 (17) "Advanced program presenter" means a person who
2-38 provides instruction in an advanced program.
2-39 SECTION 2. Chapter 752, Acts of the 69th Legislature,
2-40 Regular Session, 1985 (Article 4512k, Vernon's Texas Civil
2-41 Statutes), is amended by adding Section 1B to read as follows:
2-42 Sec. 1B. REGISTRATION REQUIRED. A person may not practice
2-43 massage therapy or represent to the public that the person
2-44 practices massage therapy unless the person is registered under
2-45 this Act or exempt under Section 4 of this Act. A person may not
2-46 use the title of "massage therapist" or "registered massage
2-47 therapist" or the initials "R.M.T." unless the person is registered
2-48 as provided under this Act.
2-49 SECTION 3. Section 2, Chapter 752, Acts of the 69th
2-50 Legislature, Regular Session, 1985 (Article 4512k, Vernon's Texas
2-51 Civil Statutes), is amended to read as follows:
2-52 Sec. 2. MASSAGE THERAPIST REGISTRATION REQUIREMENTS.
2-53 (a) An applicant for registration as a massage therapist must:
2-54 (1) submit a written application to the department,
2-55 (2) provide to the department the evidence required
2-56 under Section 11 of this Act; and
2-57 (3) pay the appropriate fees to the department.
2-58 [individual who practices as a massage therapist, or who represents
2-59 that the individual is a massage therapist must register as
2-60 provided by this Act, unless the individual is exempt from
2-61 registration. A massage therapist may not perform massage therapy,
2-62 whether or not for compensation, at or for a sexually oriented
2-63 business.]
2-64 (b) A person applying to take the examination required for
2-65 registration as a massage therapist [An individual who registers as
2-66 a massage therapist under this Act] must present evidence
2-67 [satisfactory to the board] that the person:
2-68 (1) has successfully [satisfactorily] completed an
2-69 approved 300-hour course of instruction required for registration
3-1 as a massage therapist under this Act, which shall have been
3-2 provided [massage therapy studies in a 300 hour, supervised course
3-3 of instruction provided by a massage therapy instructor, by a
3-4 massage school registered with the department, by a state approved
3-5 educational institution, or] by an independent massage therapy
3-6 instructor [any combination of instructors] or a massage school, or
3-7 by both [schools, in which 125 hours are dedicated to the study of
3-8 Swedish massage therapy techniques taught by a massage therapy
3-9 instructor, 50 hours to the study of anatomy, 25 hours to the study
3-10 of physiology, 15 hours to the study of hydrotherapy, 15 hours to
3-11 the study of business practices and professional ethics standards,
3-12 20 hours to the study of health and hygiene, and 50 hours to an
3-13 internship program];
3-14 (2) is licensed, certified, or registered to practice
3-15 [as a] massage therapy [therapist] in another jurisdiction [state
3-16 or country] that has and maintains standards and requirements of
3-17 practice and licensing, certification or registration that
3-18 substantially conform to those of this state, as determined by the
3-19 department; or
3-20 (3) has practiced massage therapy as a profession for
3-21 not less than 36 months collectively within five years preceding
3-22 the date of the application in another jurisdiction [state or
3-23 country] that does not have or maintain standards and requirements
3-24 of practice and licensing, certification, or registration that
3-25 substantially conform to those of this state, as determined by the
3-26 department.
3-27 (c) The 300-hour course of instruction in massage therapy
3-28 studies required for registration under this Act must include hours
3-29 in the subjects of Swedish massage therapy therapy techniques,
3-30 anatomy, physiology, hydrotherapy, business practices and
3-31 professional ethics standards, health and hygiene. The board shall
3-32 adopt rules that mandate the course content within the required
3-33 300-hour course of instruction, sequence, and minimum number of
3-34 hours of instruction required in each of the subjects. An
3-35 internship of not less than 40 hours of hands-on massage is
3-36 required within the 300-hour course of instruction.
3-37 (d) Only course work taught by a massage school or
3-38 independent massage therapy instructor may qualify for credit under
3-39 Subsection (b)(1) of this section, except that the department may
3-40 accept massage therapy course work taken outside of this state to
3-41 satisfy one or more of the subject requirements contained in
3-42 Subsection (c) of this section if the out-of-state course work is
3-43 equivalent to the course work required by the department.
3-44 (e) [(c)] A student enrolled in a 300-hour [a state
3-45 approved] course of instruction required for registration as a
3-46 massage therapist under this Act [that consists of a minimum of 300
3-47 hours] is exempt from registration under this Act if the student
3-48 provides massage therapy as part of an internship program or for no
3-49 compensation.
3-50 (f) A massage therapist may not perform massage therapy at
3-51 or for a sexually oriented business regardless of whether the
3-52 massage therapist receives compensation or not.
3-53 SECTION 4. Section 2A, Chapter 752, Acts of the 69th
3-54 Legislature, Regular Session, 1985 (Article 4512k, Vernon's Texas
3-55 Civil Statutes), is amended to read as follows:
3-56 Sec. 2A. MASSAGE SCHOOLS, INDEPENDENT MASSAGE THERAPY
3-57 INSTRUCTORS, AND INTERNSHIPS. (a) A person [A massage school]
3-58 that offers[, at a minimum,] the 300-hour course of instruction
3-59 required for registration as a massage therapist or an advanced
3-60 program must register with the department as a massage school or as
3-61 an independent massage therapy instructor. A massage school or an
3-62 independent massage therapy instructor must meet the minimum
3-63 standards of operation established by board rule at a location
3-64 approved by the department and may only provide a 300-hour course
3-65 of instruction that is approved by the department.
3-66 (b) A massage therapy instructor employed or retained by a
3-67 massage school who teaches the Swedish massage technique or
3-68 internship sections within the 300-hour course of instruction
3-69 required for registration as a massage therapist must register with
4-1 the department as provided by this Act.
4-2 (c) An instructor employed or retained by a massage school
4-3 and an advanced program presenter must meet the minimum
4-4 requirements established by board rule.
4-5 (d) An internship program approved by the department shall
4-6 be conducted on the school grounds or in a clinic or a classroom
4-7 setting provided by the massage school or an independent massage
4-8 therapy instructor.
4-9 (e) A student must successfully complete the requirements of
4-10 the first 250 hours of education [training] at the massage school
4-11 or with the independent massage therapy instructor before being
4-12 eligible to enter the internship program.
4-13 (f) A student who is participating in an internship program
4-14 may:
4-15 (1) make an appointment with a client;
4-16 (2) interview a client;
4-17 (3) perform massage therapy;
4-18 (4) collect and review a client evaluation with the
4-19 student's massage therapy instructor [supervisor];
4-20 (5) perform other tasks necessary to the business of
4-21 providing massage therapy to the public.
4-22 (g) A student participating in an internship program
4-23 conducted by a massage school must be under the supervision and
4-24 direction of a massage therapy instructor during the hours that the
4-25 student is participating [working] in the program. A student who
4-26 is participating in an internship program conducted by an
4-27 independent massage therapy instructor must be under the
4-28 supervision of that instructor during the hours the student is
4-29 participating in the internship program.
4-30 (h) An internship program shall provide a student with a
4-31 minimum of 40 hours of hands-on massage therapy experience.
4-32 (i) An internship program must meet the qualifications
4-33 established by the board [with the advice of the advisory council].
4-34 (j) The department shall regulate all [school] hours
4-35 included within a 300-hour course of instruction provided by a
4-36 massage school or [a] an independent massage therapy instructor.
4-37 (k) A massage school or an independent [a] massage therapy
4-38 instructor may not offer a course of instruction as a massage
4-39 therapist which requires the successful completion of more course
4-40 hours than are required for registration as a massage therapist.
4-41 (l) A massage school or an independent massage therapy
4-42 instructor [registered under this chapter] must give each
4-43 prospective student a notice that clearly states the number of
4-44 course hours which must be successfully completed before a student
4-45 can apply to register as a massage therapist under this chapter.
4-46 (m) The notice required in Subsection (l) of this section
4-47 must be given to each prospective student at a time and in a manner
4-48 that provides the student with sufficient opportunity to read the
4-49 notice and discuss it with the massage school officials or with the
4-50 independent massage therapy instructor, if necessary for
4-51 understanding and clarity, before signing an enrollment contract
4-52 and before the massage school or the independent massage therapy
4-53 instructor accepts the student in a course of study.
4-54 (n) A massage school or independent massage therapy
4-55 instructor shall notify the department on the prescribed form of
4-56 any advanced program to be offered by the school or independent
4-57 massage therapy instructor for placement on the massage therapy
4-58 advanced program registry. The credentials of the advanced program
4-59 presenter must be submitted to the department with the
4-60 notification. In order to qualify for placement on the advanced
4-61 program registry, the proposed advanced program shall not authorize
4-62 the practice, diagnosis or treatment of illness or disease or any
4-63 service or procedure for which a license to practice medicine,
4-64 chiropractic, physical therapy, occupational therapy or podiatry is
4-65 required by law.
4-66 (o) An advanced program presenter must have the experience
4-67 and credential necessary to provide effective instruction in the
4-68 topic covered in the advanced program. An advanced program
4-69 presenter is not required to be a registered massage therapist
5-1 under this Act or regulated by another jurisdiction unless that
5-2 person is offering instruction in massage techniques as a portion
5-3 of the advanced program.
5-4 SECTION 5. Section 4, Chapter 752, Acts of the 69th
5-5 Legislature, Regular Session, 1985 (Article 4512k, Vernon's Texas
5-6 Civil Statutes), is amended to read as follows:
5-7 Sec. 4. Exemptions. This Act does not apply to:
5-8 (1) a person who is licensed in this state as a
5-9 physician, chiropractor, physical therapist, nurse, cosmetologist,
5-10 athletic trainer, occupational therapist, or member of another
5-11 similar profession that is subject to state licensing, while the
5-12 person is practicing within the scope of the license;
5-13 (2) an employer that sponsors a course of instruction,
5-14 other than the 300-hour course of instruction required for
5-15 registration as a massage therapist, for training the employer's
5-16 employees and for which no tuition is charged to the employees; or
5-17 (3) a trade, business or professional organization
5-18 that sponsors a course of instruction for members or guests of the
5-19 organization at a meeting or convention if the course is not
5-20 offered for a fee [a school approved by the Central Education
5-21 Agency or that is otherwise approved by the state; or]
5-22 [(3) an instructor who is otherwise approved by the
5-23 state to teach in an area of study included in the required course
5-24 of instruction.]
5-25 SECTION 6. Chapter 752, Chapter 752, Acts of the 69th
5-26 Legislature, Regular Session, 1985 (Article 4512k, Vernon's Texas
5-27 Civil Statutes), is amended by adding Section 4A to read as
5-28 follows:
5-29 Sec. 4A. PROSPECTIVE CLIENT INTERVIEW REQUIRED. (a) Prior
5-30 to administering massage therapy to a prospective client that
5-31 claims to be experiencing pain in one or more specific locations of
5-32 their body, the massage therapist must conduct an interview with
5-33 the prospective client to identify if the prospective client has
5-34 recently experienced traumatic physical injury.
5-35 (b) If the massage therapist is provided with information
5-36 during the interview with the prospective client that reveals that
5-37 the prospective client has recently experienced traumatic physical
5-38 injury, then the massage therapist shall not administer massage
5-39 therapy.
5-40 SECTION 7. Sections 7(a), (b), (d), (e) and (f), Chapter
5-41 752, Acts of the 69th Legislature, Regular Session, 1985 (Article
5-42 4512k, Vernon's Texas Civil Statutes), are amended to read as
5-43 follows:
5-44 (a) The board[, with the advice of the advisory council,]
5-45 shall adopt rules consistent with this Act, including rules
5-46 relating to the definition of "unprofessional conduct" as that term
5-47 is used by Section 11(a)(4) of this Act, as necessary for the
5-48 performance of its duties under this Act. The board shall adopt
5-49 rules in the manner provided by Chapter 2001.001 et. seq,
5-50 Government Code [the Administrative Procedure and Texas Register
5-51 Act (Article 6252-13a, Vernon's Texas Civil Statutes)].
5-52 (b) The department shall administer this Act and may adopt
5-53 fees for those regulated by this Act in amounts necessary to cover
5-54 the costs of administering this Act.
5-55 (d) The department shall prepare and administer a state
5-56 examination as required to implement this Act. The department may
5-57 hire examiners [with the recommendation of the advisory council].
5-58 An examiner is entitled to compensation and the state per diem
5-59 allowance as set by the General Appropriations Act for
5-60 transportation and related expenses incurred by the examiner in
5-61 engaging in the business of the department.
5-62 (e) The department shall appoint task forces as necessary to
5-63 advise the department. A task force appointed by the department
5-64 shall include, at a minimum, a representative of a massage school
5-65 with at least 100 students, a representative of a massage school
5-66 with fewer than 100 students, an independent massage therapy
5-67 instructor, and a registered massage therapist. [The board and
5-68 department shall cooperate with the advisory council in the
5-69 administration of this Act, and shall make available to advisory
6-1 council reports, statistical information, and other information as
6-2 reasonably necessary for the advisory council to perform its duties
6-3 under this Act.]
6-4 (f) The department shall regulate all massage school and
6-5 independent massage therapy instructor hours offered as part of the
6-6 300-hour course of instruction required for registration as a
6-7 massage therapist.
6-8 (g) The board shall adopt rules to prohibit false,
6-9 misleading, or deceptive practices by persons regulated under this
6-10 Act. The board may not include in its rules to prohibit false,
6-11 misleading, or deceptive practices a rule that:
6-12 (1) restricts the person's use of any medium for
6-13 advertising;
6-14 (2) restricts the person's personal appearance or use
6-15 of the person's voice in an advertisement;
6-16 (3) relates to the size or duration of an
6-17 advertisement by the person; or
6-18 (4) restricts the person's advertisement under a trade
6-19 name.
6-20 (h) The department shall review the results of the state
6-21 examination and student evaluations in determining school
6-22 compliance with the 300-hour course of instruction required for
6-23 registration as a massage therapist.
6-24 SECTION 8. Section 7C, Chapter 752, Acts of the 69th
6-25 Legislature, Regular Session, 1985 (Article 4512k, Vernon's Texas
6-26 Civil Statutes), is amended to read as follows:
6-27 Sec. 7C. BOARD RULES FOR INDEPENDENT [A] MASSAGE THERAPY
6-28 INSTRUCTORS [INSTRUCTOR]. The board rules relating to an
6-29 independent massage therapy instructor must contain minimum
6-30 standards for:
6-31 (1) the issuance, denial, renewal, suspension,
6-32 revocation, or probation of a registration under this Act;
6-33 (2) the qualifications of an independent [a] massage
6-34 therapy instructor;
6-35 (3) the supervision of a student by an independent [a]
6-36 massage therapy instructor;
6-37 (4) the maximum number of hours a student may
6-38 accumulate in an internship program under the supervision of an
6-39 independent [a] massage therapy instructor without being required
6-40 to be registered under this Act;
6-41 (5) the equipment essential to the education, health,
6-42 and safety of students and the public;
6-43 (6) the sanitary and hygienic conditions of the
6-44 physical environment in which an independent [a] massage therapy
6-45 instructor teaches;
6-46 (7) the provision of massage therapy by a student or
6-47 an independent [a] massage therapy instructor;
6-48 (8) the educational and clinical records kept by an
6-49 independent [a] massage therapy instructor;
6-50 (9) the curriculum taught and educational material
6-51 used by an independent [a] massage therapy instructor;
6-52 (10) the inspection of the records, equipment, and
6-53 physical environment of an independent [a] massage therapy
6-54 instructor;
6-55 (11) any other aspect of an independent [a] massage
6-56 therapy instructor's instruction or operation of any portion of the
6-57 course of instruction required for registration as a massage
6-58 therapist.
6-59 SECTION 9. Section 11, Chapter 752, Acts of the 69th
6-60 Legislature, Regular Session, 1985 (Article 4512k, Vernon's Texas
6-61 Civil Statutes), is amended to read as follows:
6-62 Sec. 11. Registration, Denial, Probation, Suspension, or
6-63 Revocation. (a) The department may refuse to issue a registration
6-64 certificate to an applicant, may suspend or revoke a registration
6-65 certificate, or may place a registered person, including a massage
6-66 school, an independent massage therapy instructor, a massage
6-67 therapy instructor, or a massage establishment, on probation for
6-68 any of the following causes:
6-69 (1) obtaining a certificate by means of fraud,
7-1 misrepresentation, or concealment of material facts;
7-2 (2) selling, bartering, or offering [offer] to sell or
7-3 barter a registration certificate;
7-4 (3) violating any rule adopted by the board;
7-5 (4) engaging in unprofessional conduct that has
7-6 endangered or is likely to endanger the health, welfare, or safety
7-7 of the public as defined by the rules established by the board;
7-8 (5) violating a regulation adopted by a political
7-9 subdivision under Chapter 243, Local Government Code; [or]
7-10 (6) violating any provisions of this Act;
7-11 (7) using drugs or alcohol to an extent that affects
7-12 professional competence;
7-13 (8) having been convicted of, entered a plea of no
7-14 contest or guilty to, or received deferred adjudication or
7-15 community supervision for an offense involving prostitution or
7-16 another sexual offense;
7-17 (9) in the case of a massage school, having conduct
7-18 occur on the premises of the school of which the owner or operator
7-19 of the massage school knew or had reason to know that results in a
7-20 person's conviction for, a plea of no contest or guilty to, or the
7-21 receipt of deferred adjudication or community supervision for an
7-22 offense involving prostitution or another sexual offense;
7-23 (10) having a certificate of registration, license, or
7-24 other professional permit issued by another jurisdiction denied,
7-25 revoked, suspended, or subjected to other disciplinary action;
7-26 (11) being judged mentally incompetent by a court of
7-27 competent jurisdiction; or
7-28 (12) having cumulative substandard state examination
7-29 results and student evaluations within the 300-hour required course
7-30 of instruction.
7-31 (b) In determining whether a conviction, plea, deferred
7-32 adjudication, or community supervision under Subsection (a)(8) or
7-33 (a)(9) of this section shall be the basis to deny, probate,
7-34 suspend, or revoke a certificate of registration, the department
7-35 shall consider:
7-36 (1) the seriousness of the crime;
7-37 (2) the relationship of the crime to the purpose for
7-38 requiring a registration certificate;
7-39 (3) the extent to which holding a registration
7-40 certificate may offer an opportunity to engage in further criminal
7-41 activity of the same type in which the person was previously
7-42 involved;
7-43 (4) the relationship of the crime to the ability,
7-44 capacity, or fitness required to act as a massage therapist, an
7-45 independent massage therapy instructor, massage therapy instructor,
7-46 or massage school.
7-47 (c) In addition to the factors considered under Subsection
7-48 (b) of this section, the department, in determining the fitness of
7-49 a person under Subsection (a)(8) or (a)(9) of this section, shall
7-50 consider the following:
7-51 (1) the extent and nature of the person's past
7-52 criminal activity;
7-53 (2) the age of the person at the time of the crime;
7-54 (3) the amount of time that has elapsed since the
7-55 person's last criminal activity;
7-56 (4) the conduct and work activity of the person before
7-57 and after the criminal activity;
7-58 (5) evidence of the person's rehabilitation or efforts
7-59 at rehabilitation while incarcerated or after release; and
7-60 (6) other evidence of the person's present fitness,
7-61 including letters of recommendation from prosecution, law
7-62 enforcement, and correctional officers who prosecuted, arrested or
7-63 had custodial responsibility for the person or the sheriff, chief
7-64 of police where the person resides, or any other person.
7-65 (d) It is the responsibility of the applicant or registrant,
7-66 to the extent possible, to provide to the department the
7-67 recommendations of prosecution, law enforcement, and correctional
7-68 authorities. The applicant or registrant shall also furnish proof
7-69 in the form required by the department that the person has
8-1 maintained a record of steady employment, has supported the
8-2 person's dependents, has maintained a record of good conduct, and
8-3 has paid all outstanding court costs, supervision fees, fines, and
8-4 restitution ordered in any criminal cases.
8-5 (e) A conviction, a plea, deferred adjudication, or
8-6 community supervision may be considered by the department under
8-7 Subsection (a)(8) or (a)(9) of this section notwithstanding
8-8 Sections 5(c) and 20(a), Article 42.12, Code of Criminal Procedure
8-9 [An individual who has been convicted of, entered a plea of nolo
8-10 contendere or guilty to, or receiving deferred adjudication to
8-11 crimes and offenses involving prostitution or sexual offenses is
8-12 ineligible for registration as a massage therapist, massage therapy
8-13 instructor, massage school, or massage establishment. The
8-14 department shall revoke the registration of a person registered as
8-15 a massage therapist or a massage therapy instructor who is
8-16 convicted of, entered a plea of nolo contendere or guilty to, or
8-17 receiving deferred adjudication to crimes and offenses involving
8-18 prostitution or other sexual offenses, or who the department
8-19 determines has practiced or administered massage therapy at or for
8-20 a sexually oriented business. The department shall revoke the
8-21 registration of a person registered as a massage school or massage
8-22 establishment if the department determines that the school or
8-23 establishment is a sexually oriented business, or that a crime or
8-24 offense involving prostitution or other sexual offenses and
8-25 resulting in a conviction, or to which a plea of nolo contendere or
8-26 guilty was entered or deferred adjudication was received, has
8-27 occurred on the premises of the school or establishment.]
8-28 (f) [(c)] A person whose application for registration is
8-29 denied, or whose registration is placed on probation, suspended, or
8-30 revoked is entitled to a hearing before the department if the
8-31 person submits a written request to the department. Hearings are
8-32 governed by department rules for a contested hearing and by Chapter
8-33 2001.001 et. seq, Government Code [the Administrative Procedure and
8-34 Texas Register Act (Article 6252-13a, Vernon's Texas Civil
8-35 Statutes)].
8-36 [(d) A person convicted of a violation of this Act is
8-37 ineligible for registration as a massage therapist, massage therapy
8-38 instructor, massage school or massage establishment for a period of
8-39 five years.]
8-40 SECTION 10. Chapter 752, Acts of the 69th Legislature,
8-41 Regular Session, 1985 (Article 4512k, Vernon's Texas Civil
8-42 Statutes), is amended by adding Section 11A to read as follows:
8-43 Sec. 11A. ADMINISTRATIVE PENALTY. (a) The department may
8-44 assess an administrative penalty against a person who violates this
8-45 Act or a rule as adopted under this Act.
8-46 (b) The penalty may not exceed $1,000 for each violation.
8-47 Each day of a continuing violation constitutes a separate
8-48 violation.
8-49 (c) In determining the amount of an administrative penalty
8-50 assessed under this section, the department shall consider:
8-51 (1) the seriousness of the violation;
8-52 (2) the history of previous violations;
8-53 (3) the amount necessary to deter future violations;
8-54 (4) efforts to correct the violation; and
8-55 (5) any other matters that justice may require.
8-56 (d) All proceedings for the assessment of an administrative
8-57 penalty under this Act are subject to Chapter 2001, Government
8-58 Code.
8-59 (e) If, after investigation of a possible violation and the
8-60 facts surrounding that possible violation, the department
8-61 determines that a violation has occurred, the department shall give
8-62 written notice of the violation to the person alleged to have
8-63 committed the violation. The notice must include:
8-64 (1) a brief summary of the alleged violation;
8-65 (2) a statement of the amount of the proposed penalty
8-66 based on the factors set forth in Subsection (c) of this section;
8-67 and
8-68 (3) a statement of the person's right to a hearing on
8-69 the occurrence of the violation, the amount of the penalty, or both
9-1 the occurrence of the violation and the amount of the penalty.
9-2 (f) Not later than the 20th day after the date on which the
9-3 notice is received, the person notified may accept the
9-4 determination of the department, including the proposed penalty, or
9-5 make a written request for a hearing on that determination.
9-6 (g) If the person notified of the violation accepts the
9-7 determination of the department, the commissioner or that
9-8 commissioner's designee shall issue an order approving the
9-9 determination and ordering that the person pay the proposed
9-10 penalty.
9-11 (h) If the person notified under Subsection (e) of this
9-12 section timely requests a hearing, the department shall:
9-13 (1) set a hearing;
9-14 (2) give written notice of the hearing to the person;
9-15 and
9-16 (3) designate a hearings examiner to conduct the
9-17 hearing.
9-18 (i) The hearing examiner shall make findings of fact and
9-19 conclusions of law and shall promptly issue to the commissioner or
9-20 that commissioner's designee a proposal for decision as to the
9-21 occurrence of the violation and a recommendation as to the amount
9-22 of the proposed penalty if a penalty is determined to be warranted.
9-23 (j) Based on the findings of fact and conclusions of law and
9-24 the recommendations of the hearings examiner, the commissioner or
9-25 that commissioner's designee by order may find that a violation has
9-26 occurred and may assess a penalty or may find that no violation has
9-27 occurred.
9-28 (k) The department shall give notice of the order under
9-29 Subsection (j) of this section to the person notified. The notice
9-30 must include:
9-31 (1) separate statements of the findings of fact and
9-32 conclusions of law;
9-33 (2) the amount of any penalty assessed; and
9-34 (3) a statement of the right of the person to judicial
9-35 review of the order.
9-36 (l) Not later than the 30th day after the date on which the
9-37 decision is final as provided by Chapter 2001, Government Code),
9-38 the person shall:
9-39 (1) pay the penalty;
9-40 (2) pay the penalty and file a petition for judicial
9-41 review contesting the occurrence of the violation, the amount of
9-42 the penalty, or both the occurrence of the violation and the amount
9-43 of the penalty; or
9-44 (3) without paying the penalty, file a petition for
9-45 judicial review contesting the occurrence of the violation, the
9-46 amount of the penalty, or both the occurrence of the violation and
9-47 the amount of the penalty.
9-48 (m) Within the 30-day period, a person who acts under the
9-49 subsection (l)(3) of this section may:
9-50 (1) stay enforcement of the penalty by:
9-51 (A) paying the penalty to the court for
9-52 placement in an escrow account; or
9-53 (B) giving to the court a supersedeas bond that
9-54 is approved by the court for the amount of the penalty and that is
9-55 effective until all judicial review of the order is final; or
9-56 (2) request the court to stay enforcement of the
9-57 penalty by:
9-58 (A) filing with the court a sworn affidavit of
9-59 the person stating that the person is financially unable to pay the
9-60 amount of the penalty and is financially unable to give the
9-61 supersedeas bond; and
9-62 (B) giving a copy of the affidavit to the
9-63 department by certified mail.
9-64 (n) If the department receives a copy of an affidavit under
9-65 subsection (m)(2) of the section, the department may file with the
9-66 court, within five days after the date the copy is received, a
9-67 contest to the affidavit. The court shall hold a hearing on the
9-68 facts alleged in the affidavit as soon as practicable and shall
9-69 stay the enforcement of the penalty on finding that the alleged
10-1 facts are true. The person who files an affidavit has the burden
10-2 of proving that the person is financially unable to pay the penalty
10-3 and to give a supersedeas bond.
10-4 (o) If the person does not pay the penalty and the
10-5 enforcement of the penalty is not stayed, the department may refer
10-6 the matter to the attorney general for collection of the penalty.
10-7 (p) Judicial review of the order:
10-8 (1) is instituted by filing a petition as provided by
10-9 Subchapter G, Chapter 2001, Government Code; and
10-10 (2) is under the substantial evidence rule.
10-11 (q) If the court sustains the occurrence of the violation,
10-12 the court may uphold or reduce the amount of the penalty and order
10-13 the person to pay the full or reduced amount of the penalty. If
10-14 the court does not sustain the occurrence of the violation, the
10-15 court shall order that no penalty is owed.
10-16 (r) When the judgment of the court becomes final, the court
10-17 shall proceed under this subsection. If the person paid the amount
10-18 of the penalty under Subsection (l)(2) of this section and if that
10-19 amount is reduced or is not upheld by the court, the court shall
10-20 order that the department pay the appropriate amount plus accrued
10-21 interest to the person. The rate of interest is the rate charged
10-22 on loans to depository institutions by the New York Federal Reserve
10-23 Bank, and the interest shall be paid for the period beginning on
10-24 the date the penalty was paid and ending on the date the penalty is
10-25 remitted. If the person paid the penalty under Subsection
10-26 (m)(1)(A) of this section or gave a supersedeas bond and if the
10-27 amount of the penalty is not upheld by the court, the court shall
10-28 order the release of the escrow account or bond. If the person
10-29 paid the penalty under Subsection (m)(1)(A) and the amount of the
10-30 penalty is reduced, the court shall order that the amount of the
10-31 penalty be paid to the department from the escrow account and that
10-32 the remainder of the account be released. If the person gave a
10-33 supersedeas bond and if the amount of the penalty is reduced, the
10-34 court shall order the release of the bond after the person pays the
10-35 amount.
10-36 (s) An administrative penalty collected under this section
10-37 shall be deposited in the state treasury to the credit of the
10-38 general revenue fund.
10-39 (t) The department may assess reasonable expenses and costs
10-40 against a person in an administrative hearing if, as a result of
10-41 the hearing, an administrative penalty is assessed against the
10-42 person. The person shall pay expenses and costs assessed under
10-43 this subsection not later than the 30th day after the date of the
10-44 order of the commissioner of that commissioner's designee requiring
10-45 payment of expenses and costs is final. The department may refer
10-46 the matter to the attorney general for collection of the expenses
10-47 and costs.
10-48 (u) If the attorney general brings an action against a
10-49 person to enforce an administrative penalty assessed under this Act
10-50 and the person is found liable for an administrative penalty, the
10-51 attorney general may recover, on behalf of the attorney general and
10-52 the department, reasonable expenses and costs.
10-53 (v) For the purposes of this section, "reasonable expenses
10-54 and costs" includes expenses incurred by the department and the
10-55 attorney general in the investigation, initiation, or prosecution
10-56 of an action, including reasonable investigative costs, court
10-57 costs, attorney's fees, witness fees, and deposition expenses.
10-58 (w) Costs and expenses collected under this section shall be
10-59 deposited in the state treasury to the credit of a special account
10-60 that may be appropriated only to the department. Section 403.095,
10-61 Government Code, does not apply to the account.
10-62 SECTION 10. Section 12(b), Chapter 752, acts of the 69th
10-63 Legislature, Regular Session, 1985 (Article 4512k, Vernon's Texas
10-64 Civil Statutes), is amended to read as follows:
10-65 (b) The department shall adopt a system under which
10-66 registrations expire and are renewed on various dates of the year.
10-67 The department shall renew each registration within a reasonable
10-68 time period provided that the application for renewal was submitted
10-69 no later than four weeks before expiration of the renewal.
11-1 [Initial registration fees shall be prorated so that a registered
11-2 person pays only for that part of the renewal period for which the
11-3 registration is issued until the expiration date of the
11-4 registration.]
11-5 SECTION 12. Section 14, Chapter 752, Acts of the 69th
11-6 Legislature, Regular Session, 1985 (Article 4512k, Vernon's Texas
11-7 Civil Statutes), is amended to read as follows:
11-8 Sec. 14. EFFECT ON LOCAL REGULATION. [(a) Except as
11-9 provided by Subsection (b) of this section,] This [this] Act
11-10 supersedes any regulation adopted by a political subdivision of
11-11 this state relating to the licensing or regulation of massage
11-12 therapists or massage establishments.
11-13 [(b) This Act does not affect:]
11-14 [(1) local regulations relating to zoning requirements
11-15 for massage establishments or other similar regulations;]
11-16 [(2) any local regulations that authorize or require
11-17 an investigation into the background of an owner or operator of, an
11-18 investor in, a massage establishment; or]
11-19 [(3) any local regulations that do not relate directly
11-20 to the practice of massage therapy as performed by a registered
11-21 massage therapist including those professions listed under Section
11-22 4 of this Act while performing duties under their respective
11-23 licensing Acts while working with a registered massage therapist].
11-24 [(c) Except as provided by Chapter 243, Local Government
11-25 Code, a political subdivision may not adopt regulations of the type
11-26 listed in Subsection (b) of this section that are more restrictive
11-27 for massage therapists or massage establishments than for other
11-28 health care professionals or establishments.]
11-29 SECTION 13. Sections 3, 8, 9, and 16, Chapter 752, Acts of
11-30 the 69th Legislature, 1985, (Article 4512k, Vernon's Texas Civil
11-31 Statutes), are repealed.
11-32 SECTION 14. (a) This act takes effect September 1, 1997.
11-33 (b) A person or school required by this Act to be registered
11-34 under Chapter 752, Acts of the 69th Legislature, Regular Session,
11-35 1985 (Article 4512k, Vernon's Texas Civil Statutes), that was
11-36 previously exempt under Section 4, Chapter 752, Acts of the 69th
11-37 Legislature, Regular Session, 1985 (Article 4512k, Vernon's Texas
11-38 Civil Statutes), as that section existed before the effective date
11-39 of this Act, is required to be registered as provided by this Act
11-40 not later than March 1, 1998.
11-41 (c) A rule of the Texas Board of Health adopted under
11-42 Chapter 752, Acts of the 69th Legislature, Regular Session, 1985
11-43 (Article 4512k, Vernon's Texas Civil Statutes), that is in effect
11-44 on the effective date of this Act remains in effect until the board
11-45 adopts rules under Chapter 752, Acts of the 69th Legislature,
11-46 Regular Session, 1985 (Article 4512k, Vernon's Texas Civil
11-47 Statutes), as amended by this Act, unless the rule is in conflict
11-48 with this Act.
11-49 SECTION 15. The importance of this legislation and the
11-50 crowded condition of the calendars in both houses create an
11-51 emergency and an imperative public necessity that the
11-52 constitutional rule requiring bills to be read on three several
11-53 days in each house be suspended, and this rule is hereby suspended.
11-54 * * * * *