75R12294 CAG-D By Danburg H.B. No. 2416 Substitute the following for H.B. No. 2416: By Danburg C.S.H.B. No. 2416 A BILL TO BE ENTITLED 1-1 AN ACT 1-2 relating to the creation of the Texas Real Estate Inspector 1-3 Licensing Board and the regulation of real estate inspectors; 1-4 providing a criminal penalty. 1-5 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: 1-6 SECTION 1. Title 113A, Revised Statutes, is amended by 1-7 adding Article 6573a.3 to read as follows: 1-8 Art. 6573a.3. TEXAS REAL ESTATE INSPECTOR LICENSING BOARD 1-9 Sec. 1. SHORT TITLE. This article may be cited as the Texas 1-10 Real Estate Inspector License Act. 1-11 Sec. 2. DEFINITIONS. In this article: 1-12 (1) "Board" means the Texas Real Estate Inspector 1-13 Licensing Board. 1-14 (2) "Continuing education course" means an educational 1-15 course approved by the board relating to the real estate inspection 1-16 profession, including a core inspection course. 1-17 (3) "Core inspection course" means an educational 1-18 course approved by the board relating to the profession of real 1-19 estate inspection, including a course on: 1-20 (A) structural and construction principles, 1-21 including components that constitute a structure such as walls, 1-22 floors, ceilings, doors, and windows, and their claddings, 1-23 coverings, or finishes; 1-24 (B) electrical, mechanical, plumbing, or roofing 2-1 systems; 2-2 (C) appliances, equipment, or other improvements 2-3 to real property; 2-4 (D) the standards of practice, conduct, or 2-5 ethics of inspectors; 2-6 (E) inspection report writing; 2-7 (F) legal or business principles; or 2-8 (G) the study of environmental conditions that 2-9 have a direct bearing on real estate inspections. 2-10 (4) "Direct supervision" means the instruction and 2-11 control by a professional inspector or a real estate inspector 2-12 license holder who is: 2-13 (A) responsible for the actions of a person 2-14 performing a real estate inspection or preparing a report of an 2-15 inspection; 2-16 (B) available to consult with or assist a person 2-17 performing a real estate inspection or preparing a report of an 2-18 inspection; and 2-19 (C) physically present at the inspection. 2-20 (5) "Indirect supervision" means the instruction and 2-21 control by a professional inspector license holder who is: 2-22 (A) responsible for the actions of a person 2-23 performing a real estate inspection or preparing a report of an 2-24 inspection; 2-25 (B) available to consult with or assist a person 2-26 performing a real estate inspection or preparing a report of an 2-27 inspection; and 3-1 (C) not required to be physically present at the 3-2 inspection but is reasonably available, as determined by the board, 3-3 to provide oversight or assistance. 3-4 (6) "Inspection" means a written or oral opinion 3-5 concerning the condition of an improvement to real property, 3-6 including an opinion on: 3-7 (A) the condition of a structure and the 3-8 components that constitute the structure and its cladding, 3-9 covering, or waterproofing or weatherproofing; 3-10 (B) the structure's electrical, mechanical, 3-11 heating, ventilation, air conditioning, plumbing, roofing, or other 3-12 system; or 3-13 (C) other appliances or equipment on the 3-14 property. 3-15 (7) "Inspector" means a person licensed by the board. 3-16 Sec. 3. POWERS AND DUTIES OF BOARD. (a) The Texas Real 3-17 Estate Inspector Licensing Board shall administer this article. 3-18 (b) The board is an independent division of the Texas Real 3-19 Estate Commission. The Texas Real Estate Commission shall provide 3-20 support for the board, including providing office facilities, 3-21 administrative, legal, and enforcement support, computer and 3-22 secretarial support, and supplies. The board shall reimburse, from 3-23 its budget, the Texas Real Estate Commission for the cost of any 3-24 support provided by the commission. 3-25 (c) The board may adopt: 3-26 (1) rules for the licensing of inspectors; 3-27 (2) rules relating to the enforcement of this article 4-1 and discipline of an inspector licensed under this article; 4-2 (3) rules relating to the education and experience 4-3 requirements for licensing as an inspector; 4-4 (4) rules relating to the qualifying examination 4-5 required for licensing as an inspector; 4-6 (5) rules relating to the approval of education 4-7 providers or schools providing inspection-related courses for core 4-8 inspection and continuing education courses; 4-9 (6) rules establishing a code of professional conduct 4-10 and ethics for inspectors; 4-11 (7) reasonable fees in amounts necessary to implement 4-12 this article, including a license application fee, an examination 4-13 fee, a license renewal fee, or any other fee required by law; 4-14 (8) rules relating to the length and content of core 4-15 inspection courses and continuing education requirements for an 4-16 inspector; 4-17 (9) rules relating to the standards of practice for 4-18 conducting an inspection; 4-19 (10) rules relating to grounds for granting or denying 4-20 an application for a license; 4-21 (11) rules prescribing the form and content of an 4-22 application or form required under this article; and 4-23 (12) rules relating to the design and use of a seal or 4-24 imprint on reports and other documents. 4-25 (d) The board may employ an administrator, an assistant 4-26 administrator, or other staff necessary to implement this article. 4-27 The board may contract with another agency or board for the 5-1 provision of goods or services necessary to implement this article. 5-2 (e) The board shall adopt a seal. A copy of a record of the 5-3 board, certified and authenticated by the seal, shall be received 5-4 in evidence in a court and considered as the original. 5-5 (f) The board may adopt and enforce rules necessary for the 5-6 performance of its duties, establish standards of conduct and 5-7 ethics for inspectors, or ensure compliance with this article. 5-8 (g) In addition to any other action, proceeding, or remedy, 5-9 the board may institute an action in district court in its own name 5-10 to enjoin any violation of this article or a board rule. In filing 5-11 such an action, the board is not required to allege or prove either 5-12 that an adequate remedy at law does not exist or that substantial 5-13 or irreparable damage would result from the continued violation. A 5-14 party to an action filed under this section may appeal to an 5-15 appellate court. The board is not required to give an appeal bond 5-16 in any action or proceeding to enforce this article. 5-17 (h) Money derived from fees, assessments, or charges under 5-18 this article shall be paid by the board to the comptroller for 5-19 safekeeping and shall be placed by the comptroller in a separate 5-20 fund to be available for the use of the board in the administration 5-21 of this article, including the payment of expenses related to 5-22 equipment and maintenance of supplies for the offices or quarters 5-23 occupied by the board and necessary travel expenses for the board 5-24 or its employees. The comptroller shall, on requisition of the 5-25 board, draw warrants from time to time for the amount specified in 5-26 the requisition. All money spent in the administration of this 5-27 article shall be specified and determined by an itemized 6-1 appropriation in the General Appropriations Act for the Texas Real 6-2 Estate Inspector Licensing Board. The board shall file with the 6-3 governor and the presiding officer of each house of the legislature 6-4 an annual detailed written report accounting for all funds received 6-5 and disbursed by the board during the preceding fiscal year. The 6-6 annual report must be in the form and reported in the time provided 6-7 by the General Appropriations Act. 6-8 (i) The board may contract for services or authorize 6-9 specific employees to conduct hearings and render final decisions 6-10 in contested cases. The board may employ or contract for services 6-11 from another agency, board, or commission of a general counsel, 6-12 attorneys, investigators, and support staff to administer and 6-13 enforce this article. 6-14 Sec. 4. TEXAS REAL ESTATE INSPECTOR LICENSING BOARD. 6-15 (a) The Texas Real Estate Inspector Licensing Board consists of 6-16 nine members appointed by the governor with the advice and consent 6-17 of the senate. 6-18 (b) Five members of the board must be public members. One 6-19 of the public members may be a licensed real estate broker. Four 6-20 members of the board must be professional inspectors. 6-21 (c) The members of the board hold office for staggered terms 6-22 of six years, with the terms of three members expiring February 1 6-23 of each odd-numbered year. Each member holds office until the 6-24 member's successor is appointed. Not later than the 15th day after 6-25 the date of the person's appointment to the board, the person must 6-26 take the constitutional oath of office. 6-27 (d) An appointment to the board shall be made without regard 7-1 to the sex, race, color, age, disability, religion, or national 7-2 origin of the appointee. 7-3 (e) A professional inspector member of the board may not 7-4 hold an active real estate broker or salesman license and must have 7-5 been licensed and practicing as an inspector for at least 10 years 7-6 preceding appointment to the board. 7-7 (f) A member of the board is entitled to compensation and 7-8 reimbursement of the member's travel expenses as provided by the 7-9 General Appropriations Act. 7-10 (g) The board shall elect annually from its membership a 7-11 presiding officer, assistant presiding officer, and secretary. The 7-12 presiding officer and assistant presiding officer must be 7-13 professional inspectors. 7-14 (h) Five members of the board are necessary for a quorum. 7-15 (i) The board shall adopt procedural rules to be used by the 7-16 board in implementing its powers and duties. 7-17 (j) The board and its employees and agents are subject to 7-18 Chapters 551 and 2001, Government Code. 7-19 (k) The board shall meet semiannually. The board may also 7-20 meet at the call of a majority of its members. 7-21 Sec. 5. REMOVAL OF MEMBER. (a) It is a ground for removal 7-22 from the board if the member: 7-23 (1) does not have at the time of appointment or does 7-24 not maintain during service on the board the qualifications 7-25 required by Section 4 of this article; 7-26 (2) cannot discharge the member's duties for a 7-27 substantial part of the term for which the member is appointed 8-1 because of illness or disability; 8-2 (3) violates a prohibition established by Section 6 of 8-3 this article; or 8-4 (4) is absent from more than half of the regularly 8-5 scheduled board meetings that the member is eligible to attend 8-6 during each year, unless the absence is excused by the board. 8-7 (b) The validity of an action of the board is not affected 8-8 by the fact that it was taken when a ground for removal of a board 8-9 member existed. 8-10 (c) If a board member has knowledge that a potential ground 8-11 for removal exists, the member shall notify the presiding officer 8-12 of the board of the potential ground. The presiding officer shall 8-13 then notify the governor and the attorney general that a potential 8-14 ground for removal exists. If the potential ground for removal 8-15 involves the presiding officer, the member shall notify the next 8-16 highest officer of the board, who shall notify the governor and the 8-17 attorney general that a potential ground for removal exists. 8-18 Sec. 6. CONFLICTS OF INTEREST. (a) An officer, employee, 8-19 or paid consultant of a Texas trade association in the field of 8-20 real estate inspections may not be a public member of the board or 8-21 employee of the board who is exempt from the state's position 8-22 classification plan or is compensated at or above the amount 8-23 prescribed by the General Appropriations Act for step 1, salary 8-24 group 17, of the position classification salary schedule. 8-25 (b) A person who is the spouse of an officer, manager, or 8-26 paid consultant of a Texas trade association in the field of real 8-27 estate inspections may not be a public member of the board and may 9-1 not be an employee of the board who is exempt from the state's 9-2 position classification plan or is compensated at or above the 9-3 amount prescribed by the General Appropriations Act for step 1, 9-4 salary group 17, of the position classification salary schedule. 9-5 (c) For the purposes of this section, a Texas trade 9-6 association is a nonprofit, cooperative, and voluntarily joined 9-7 association of business or professional competitors in this state 9-8 designed to assist its members and its industry or profession in 9-9 dealing with mutual business or professional problems and in 9-10 promoting their common interest. 9-11 Sec. 7. LOBBYIST RESTRICTION. A person may not serve as a 9-12 member of the board or act as the general counsel to the board if 9-13 the person is required to register as a lobbyist under Chapter 305, 9-14 Government Code, because of the person's activities for 9-15 compensation on behalf of a profession related to the operation of 9-16 the board. 9-17 Sec. 8. PUBLIC PARTICIPATION. The board shall develop and 9-18 implement policies that provide the public with a reasonable 9-19 opportunity to appear before the board and to speak on any issue 9-20 under the jurisdiction of the board. 9-21 Sec. 9. MEMBER TRAINING. (a) Before a member of the board 9-22 may assume the member's duties and before the member may be 9-23 confirmed by the senate, the member must complete at least one 9-24 course of a training program established by the board. 9-25 (b) A training program established under this section must 9-26 provide information to the member regarding: 9-27 (1) the enabling legislation that created the board to 10-1 which the member is appointed to serve; 10-2 (2) the programs operated by the board; 10-3 (3) the role and functions of the board; 10-4 (4) the rules of the board, with an emphasis on the 10-5 rules that relate to disciplinary and investigatory authority; 10-6 (5) the current budget for the board; 10-7 (6) the results of the most recent formal audit of the 10-8 board; 10-9 (7) the requirements of the: 10-10 (A) open meetings law, Chapter 551, Government 10-11 Code; 10-12 (B) open records law, Chapter 552, Government 10-13 Code; and 10-14 (C) administrative procedure law, Chapter 2001, 10-15 Government Code; 10-16 (8) the requirements of the conflict of interest laws 10-17 and other laws relating to public officials; and 10-18 (9) any applicable ethics policies adopted by the 10-19 agency or the Texas Ethics Commission. 10-20 Sec. 10. RESPONSIBILITIES OF BOARD AND STAFF. The board 10-21 shall develop and implement policies that clearly separate the 10-22 policy-making responsibilities of the board and the management 10-23 responsibilities of the board and the staff of the board. 10-24 Sec. 11. CAREER LADDER. The board or the board's designee 10-25 shall develop an intra-agency career ladder program that addresses 10-26 opportunities for mobility and advancement for employees within the 10-27 board. The program must require intra-agency posting of all 11-1 positions concurrently with any public posting. 11-2 Sec. 12. PERFORMANCE REVIEW. The board or the board's 11-3 designee shall develop a system of annual performance evaluations 11-4 that are based on documented employee performance. All merit pay 11-5 for board employees must be based on the system established under 11-6 this section. 11-7 Sec. 13. PUBLIC INFORMATION. The board or the board's 11-8 designee shall provide to members of the board and to board 11-9 employees, as often as necessary, information regarding their 11-10 qualifications for office or employment under this article and 11-11 their responsibilities under applicable laws relating to standards 11-12 of conduct for state officers or employees. 11-13 Sec. 14. EQUAL EMPLOYMENT OPPORTUNITY. (a) The board or 11-14 the board's designee shall prepare and maintain a written policy 11-15 statement to assure implementation of a program of equal employment 11-16 opportunity under which all personnel transactions are made without 11-17 regard to race, color, disability, sex, religion, age, or national 11-18 origin. The policy statement must include: 11-19 (1) personnel policies, including policies relating to 11-20 recruitment, evaluation, selection, appointment, training, and 11-21 promotion of personnel that are in compliance with requirements of 11-22 Chapter 21, Labor Code; 11-23 (2) a comprehensive analysis of the board workforce 11-24 that meets federal and state guidelines; 11-25 (3) procedures by which a determination can be made 11-26 about the extent of underuse in the board workforce of all persons 11-27 for whom federal or state guidelines encourage a more equitable 12-1 balance; and 12-2 (4) reasonable methods to appropriately address those 12-3 areas of underuse. 12-4 (b) A policy statement prepared under Subsection (a) of this 12-5 section must cover an annual period, be updated annually and 12-6 reviewed by the Commission on Human Rights for compliance with 12-7 Subsection (a)(1) of this section, and be filed with the governor's 12-8 office. 12-9 (c) The governor's office shall deliver a biennial report to 12-10 the legislature based on the information received under Subsection 12-11 (b) of this section. The report may be made separately or as a 12-12 part of other biennial reports made to the legislature. 12-13 Sec. 15. PUBLIC INTEREST INFORMATION. (a) The board shall 12-14 prepare information of public interest describing the functions of 12-15 the board and the procedures by which complaints are filed with and 12-16 resolved by the board. The board shall make the information 12-17 available to the public and appropriate state agencies. 12-18 (b) The board by rule shall establish methods by which 12-19 consumers and service recipients are notified of the name, mailing 12-20 address, and telephone number of the board for the purpose of 12-21 directing complaints to the board. The board may provide for that 12-22 notification: 12-23 (1) on each registration form, application, or written 12-24 contract for services of an individual licensed under this article; 12-25 (2) on a sign prominently displayed in the place of 12-26 business of each individual licensed under this article; or 12-27 (3) in a bill for service provided by an individual 13-1 licensed under this article. 13-2 Sec. 16. INFORMATION ON COMPLAINTS. The board shall keep 13-3 information about each complaint filed with the board. The 13-4 information must include: 13-5 (1) the date the complaint is received; 13-6 (2) the name of the complainant; 13-7 (3) the subject matter of the complaint; 13-8 (4) a record of all persons contacted in relation to 13-9 the complaint; 13-10 (5) a summary of the results of the review or 13-11 investigation of the complaint; and 13-12 (6) for complaints for which the board took no action, 13-13 an explanation of the reason the complaint was closed without 13-14 action. 13-15 Sec. 17. NOTIFICATION OF COMPLAINTS. The board shall keep 13-16 a file about each written complaint filed with the board that the 13-17 board has authority to resolve. The board shall provide to the 13-18 person filing the complaint and the persons or entities complained 13-19 about the board's policies and procedures pertaining to complaint 13-20 investigation and resolution. The board, at least quarterly and 13-21 until final disposition of the complaint, shall notify the person 13-22 filing the complaint and the persons or entities complained about 13-23 of the status of the complaint unless the notice would jeopardize 13-24 an undercover investigation. 13-25 Sec. 18. ACCESSIBILITY. The board shall comply with federal 13-26 and state laws related to program and facility accessibility. The 13-27 board shall also prepare and maintain a written plan that describes 14-1 how a person who does not speak English can be provided reasonable 14-2 access to the board's programs and services. 14-3 Sec. 19. LICENSE REQUIRED. A person may not act as a 14-4 professional inspector, a real estate inspector, or an apprentice 14-5 inspector of improvements to real property unless the person holds 14-6 the appropriate license issued by the board. 14-7 Sec. 20. POWER AND DUTIES OF LICENSE HOLDER. (a) A 14-8 professional inspector license holder may represent to the public 14-9 that the person is trained and qualified to perform an inspection 14-10 and may accept employment to perform an inspection of improvements 14-11 to real property for any party. 14-12 (b) A real estate inspector license holder may represent to 14-13 the public that the person is trained and qualified to perform 14-14 inspections under the indirect supervision of a professional 14-15 inspector and may accept employment to perform an inspection of 14-16 improvements to real property for any party. 14-17 (c) An apprentice inspector license holder may perform 14-18 activities under the direct supervision of a professional inspector 14-19 or real estate inspector license holder that are necessary to 14-20 become qualified to perform an inspection. 14-21 Sec. 21. ELIGIBILITY; APPLICATION. (a) To receive a 14-22 license as an apprentice inspector, an applicant must: 14-23 (1) be a citizen of the United States or a lawfully 14-24 admitted alien; 14-25 (2) be a resident of this state at the time of the 14-26 filing of the application; 14-27 (3) be sponsored by a professional inspector license 15-1 holder who is determined by the commission to have performed 200 or 15-2 more inspections; 15-3 (4) be 18 years of age or older; and 15-4 (5) satisfy the board as to the applicant's honesty, 15-5 trustworthiness, and integrity. 15-6 (b) To receive a license as a real estate inspector, an 15-7 applicant must: 15-8 (1) have been licensed as an apprentice inspector for 15-9 three months or more; 15-10 (2) have performed 25 or more inspections under direct 15-11 supervision before the date of the filing of an application for the 15-12 license; 15-13 (3) satisfy the board as to the applicant's honesty, 15-14 trustworthiness, integrity, and competency; 15-15 (4) present satisfactory evidence to the board of 15-16 completion by the applicant of 200 or more classroom hours in core 15-17 inspection courses; 15-18 (5) satisfy the examination requirements under Section 15-19 22 of this article; and 15-20 (6) be sponsored by a professional inspector license 15-21 holder who is determined by the commission to have performed 200 or 15-22 more inspections. 15-23 (c) To receive a license as a professional inspector, an 15-24 applicant must: 15-25 (1) have been licensed as a real estate inspector for 15-26 at least one year; 15-27 (2) have performed 175 or more inspections under 16-1 indirect supervision before the date of the filing of an 16-2 application for the license; 16-3 (3) submit satisfactory evidence to the board of the 16-4 completion by the applicant, since the issuance of a real estate 16-5 inspector license, of 64 or more classroom hours of core inspection 16-6 courses, of which 32 classroom hours must be related to the study 16-7 of standards of practice or ethics of inspection or legal issues 16-8 related to the profession of inspections; and 16-9 (4) satisfy the examination requirements under Section 16-10 22 of this article. 16-11 (d) The board by rule shall provide for the substitution of 16-12 additional relevant experience or education to satisfy the 16-13 requirements of performing a specified number of inspections or 16-14 having been previously licensed as an apprentice inspector or a 16-15 real estate inspector under this section. A rule adopted under 16-16 this subsection may not require an applicant seeking to substitute 16-17 relevant experience or education for other licensing requirements 16-18 to complete more than 60 additional classroom hours of core 16-19 inspection courses. 16-20 (e) An applicant must file an application for a license on a 16-21 form prescribed by the board. 16-22 Sec. 22. EXAMINATION. (a) The board shall prescribe and 16-23 prepare or contract for the preparation of a licensing examination. 16-24 The board may authorize a contract vendor to collect a fee for the 16-25 examination in an amount determined by the board. 16-26 (b) A licensing examination must evaluate competence in the 16-27 subject matter of any core inspection courses. 17-1 (c) The licensing examination shall be offered not less than 17-2 once every two months. 17-3 (d) If an applicant fails the examination, the applicant may 17-4 apply for reexamination and shall pay a reexamination fee set by 17-5 the board. 17-6 (e) An applicant must satisfy the examination requirement 17-7 during the six-month period after the date the license application 17-8 is filed. A license applicant who fails to satisfy the examination 17-9 requirement within that time must submit a new license application 17-10 to the board and pay the examination fee to be eligible for 17-11 examination. 17-12 (f) If a license applicant fails the examination four 17-13 consecutive times in connection with an application for the same 17-14 license, the applicant may not apply for reexamination or submit a 17-15 new license application with the board until the expiration of six 17-16 months after the date the applicant failed the last examination. 17-17 (g) Not later than the 30th day after the date a licensing 17-18 examination is administered under this section, the board shall 17-19 notify each examinee of the results of the examination. However, 17-20 if an examination is graded or reviewed by a contract vendor, the 17-21 board shall notify examinees of the results of the examination not 17-22 later than the 14th day after the date the board receives the 17-23 results from the contract vendor. If the notice of examination 17-24 results graded or reviewed by a contract vendor will be delayed for 17-25 longer than 90 days after the examination date, the board shall 17-26 notify the examinee of the reason for the delay before the 90th day 17-27 after the examination date. 18-1 (h) If requested in writing by a person who fails a 18-2 licensing examination administered under this section, the board 18-3 shall furnish the person with an analysis of the person's 18-4 performance on the examination. 18-5 Sec. 23. ISSUANCE OF LICENSE. (a) The board shall issue an 18-6 apprentice inspector license, a real estate inspector license, or a 18-7 professional inspector license to an applicant who possesses the 18-8 required qualifications, passes the appropriate examination, if 18-9 required, and pays the fee required by Section 29 of this article. 18-10 (b) The board may waive a license requirement for an 18-11 applicant with a valid license from another state having license 18-12 requirements substantially equivalent to those of this state. 18-13 (c) On receipt of notice that the person has successfully 18-14 completed the licensing examination under Section 22 of this 18-15 article, the person must pay, in addition to any other fees, a fee 18-16 not to exceed $200, to be deposited in the inspection recovery fund 18-17 before the board issues the person a license. 18-18 Sec. 24. RECIPROCAL LICENSES. The board may waive any 18-19 prerequisite to obtaining a license for an applicant with a valid 18-20 license from another state with which this state has a reciprocity 18-21 agreement. The board may enter into reciprocal agreements with 18-22 other states to allow for licensing by reciprocity. 18-23 Sec. 25. EXPIRATION OF LICENSE; RENEWAL. (a) A license 18-24 issued under this article expires on the last day of the month 18-25 following the first anniversary of the date it is issued. 18-26 (b) A person may renew an unexpired license by paying to the 18-27 board before the expiration date of the license the required 19-1 renewal fee. 19-2 (c) If a person's license has been expired for 90 days or 19-3 less, the person may renew the license by paying to the board the 19-4 required renewal fee and a fee that is one-half of the examination 19-5 fee for the license. 19-6 (d) If a person's license has been expired for longer than 19-7 90 days but for less than two years, the person may renew the 19-8 license by paying to the board the unpaid renewal fees and a fee 19-9 that is equal to the examination fee for the license. 19-10 (e) Except as provided by Section 26 of this article, if a 19-11 person's license has been expired for two years or longer, the 19-12 person may not renew the license and may obtain a new license only 19-13 by submitting to reexamination, if required, and complying with the 19-14 requirements and procedures for obtaining an original license. 19-15 Sec. 26. LAPSED LICENSE FOR RESIDENTS AND NONRESIDENTS. 19-16 (a) The board may renew without reexamination an expired license 19-17 of a person who was licensed in this state, moved to another state, 19-18 and is currently licensed and has been in practice in the other 19-19 state for at least one year before the date of the application. 19-20 The person must pay to the board a fee that is equal to the 19-21 examination fee for the license and an additional fee, not to 19-22 exceed $200, to be deposited in the inspection recovery fund. 19-23 (b) The board may issue a license to an applicant under this 19-24 section who has satisfied all requirements for a license, including 19-25 requirements satisfied under Section 21(d) of this article, as a 19-26 professional inspector or real estate inspector if: 19-27 (1) the applicant was previously licensed as a 20-1 professional inspector or real estate inspector during the 24 20-2 months before the date of the filing of the application; 20-3 (2) the applicant is sponsored by a professional 20-4 inspector, if the applicant is applying for a real estate inspector 20-5 license; and 20-6 (3) the applicant satisfies the board as to the 20-7 applicant's honesty, trustworthiness, and integrity. 20-8 Sec. 27. NOTIFICATION; CHANGE OF ADDRESS. (a) Before the 20-9 30th day preceding the expiration date of a person's license, the 20-10 board shall send written notice of the impending license expiration 20-11 to the person at the person's last known address according to the 20-12 records of the board. 20-13 (b) An inspector shall notify the board and pay the required 20-14 fee, if any, not later than the 30th day after the date a change of 20-15 place of business occurs. 20-16 Sec. 28. INACTIVE LICENSE. The board by rule may adopt 20-17 terms and conditions by which an inspector may apply for, renew, or 20-18 place a license on inactive status and rules by which an inactive 20-19 inspector may return to active status. 20-20 Sec. 29. FEES. (a) The board shall charge and collect 20-21 reasonable and necessary fees to recover the costs of administering 20-22 this article. 20-23 (b) A fee may be paid by cash, check, cashier's check, or 20-24 money order. 20-25 (c) A fee set by the board shall be reviewed annually and 20-26 reduced to the extent that the costs of administering this article 20-27 are funded by the inspector regulation account established under 21-1 Section 41 of this article. 21-2 Sec. 30. CONTINUING EDUCATION STANDARDS. (a) The board 21-3 shall recognize, prepare, or administer continuing education 21-4 programs for inspectors. 21-5 (b) Before a real estate inspector license holder may renew 21-6 a license, the holder must submit satisfactory evidence to the 21-7 board of successful completion of at least 16 classroom hours of 21-8 continuing education courses in the year preceding the date of 21-9 renewal. 21-10 (c) Before a professional inspector license holder may renew 21-11 a license, the holder must submit satisfactory evidence to the 21-12 board of successful completion of at least 16 classroom hours of 21-13 continuing education courses in the year preceding the date of 21-14 renewal. 21-15 (d) If an inspector does not complete any continuing 21-16 education requirement before the date of renewal of a license, the 21-17 inspector may renew the inspector's license if the inspector: 21-18 (1) completes the requirement not later than the 90th 21-19 day after the date of renewal; and 21-20 (2) pays a fee, determined by the board, not to exceed 21-21 $300. 21-22 Sec. 31. PROHIBITED ACTS. An inspector may not: 21-23 (1) accept an assignment for an inspection if the 21-24 employment or fee is contingent on the reporting of a specific, 21-25 predetermined condition of the improvements to real property or is 21-26 contingent on the reporting of specific findings other than those 21-27 known by the inspector to be facts at the time of accepting the 22-1 assignment; 22-2 (2) act in a manner or engage in a practice that is 22-3 dishonest or fraudulent or that involves deceit or 22-4 misrepresentation; 22-5 (3) perform an inspection in a negligent or 22-6 incompetent manner, as determined by the standards of practice 22-7 adopted by the board; 22-8 (4) act in the dual capacity of inspector and 22-9 undisclosed principal in a transaction; 22-10 (5) act in the dual capacity of inspector and real 22-11 estate broker or salesman in a transaction; 22-12 (6) perform or agree to perform any repair or 22-13 maintenance in connection with an inspection; or 22-14 (7) violate this article or a rule of the board. 22-15 Sec. 32. OFFENSE. (a) A person commits an offense if the 22-16 person knowingly engages in the business of inspections and does 22-17 not hold a license issued under this article. 22-18 (b) An offense under this section is a Class B misdemeanor. 22-19 Sec. 33. DISCIPLINARY ACTIONS. (a) The board may conduct 22-20 an administrative hearing and may recommend disciplinary actions in 22-21 contested cases regarding an inspector. 22-22 (b) The board may contract with another agency to conduct 22-23 hearings or may authorize specific persons to conduct hearings and 22-24 render final decisions in contested cases regarding an inspector. 22-25 (c) The board may investigate the actions of an inspector 22-26 and may, after notice and hearing, reprimand, place on probation, 22-27 or take other action as considered appropriate by the board. 23-1 (d) If the board revokes a person's license, the person may 23-2 not apply to the board before the first anniversary of the date of 23-3 revocation. 23-4 (e) A license granted under this article may be revoked by 23-5 the board on proof that the board has made a payment from the 23-6 inspection recovery fund of any amount toward satisfaction of a 23-7 judgment against the inspector. The board may probate an order 23-8 revoking a license. An inspector is not eligible to receive a new 23-9 license until the person has repaid in full, including interest at 23-10 the current legal rate, the amount paid from the inspection 23-11 recovery fund on the person's account. 23-12 (f) This section does not limit the authority of the board 23-13 to take disciplinary action against an inspector for a violation of 23-14 this article or a rule of the board. The repayment in full of an 23-15 obligation to the inspection recovery fund by a person does not 23-16 nullify or modify the effect of any other disciplinary proceeding 23-17 of the board. 23-18 Sec. 34. PROBATION. If a license suspension is probated by 23-19 the board, the board may require the practitioner: 23-20 (1) to report regularly to the board on matters that 23-21 are the basis of the probation; 23-22 (2) to limit practice to the areas prescribed by the 23-23 board; 23-24 (3) to continue or review professional education until 23-25 the practitioner attains a degree of skill satisfactory to the 23-26 board in those areas that are the basis of the probation; or 23-27 (4) to take other action or fulfill a requirement 24-1 determined to be appropriate by the board. 24-2 Sec. 35. EXEMPTIONS. (a) This article does not apply to a 24-3 person licensed by this state as an architect, engineer, plumber, 24-4 or heating and air conditioning contractor, a person engaged in the 24-5 business of structural pest control under the Texas Structural Pest 24-6 Control Act (Article 135b-6, Vernon's Texas Civil Statutes), or 24-7 another person who, under a license or registration issued to that 24-8 person, repairs, maintains, or inspects improvements to real 24-9 property and who does not represent to the public through 24-10 solicitation or public advertising that the person is in the 24-11 business of inspecting the improvements, unless the person's 24-12 license or registration permits inspections. 24-13 (b) This article does not prevent a person from performing 24-14 an act that the person is authorized to perform under a license, 24-15 permit, certification, or registration issued by the federal 24-16 government, this state, or a political subdivision. 24-17 (c) A person licensed under this article is exempt from any 24-18 other law that conflicts with this article. 24-19 Sec. 36. INSPECTION RECOVERY FUND. (a) The board shall 24-20 establish an inspection recovery fund. 24-21 (b) The fund shall be used to reimburse a person who suffers 24-22 actual damages by reason of an act committed by an inspector, if: 24-23 (1) the inspector was licensed at the time the act was 24-24 committed; and 24-25 (2) recovery of damages is ordered by a court of 24-26 competent jurisdiction against the inspector. 24-27 (c) The use of the fund is limited to an act that is a 25-1 violation of Section 31 of this article. 25-2 Sec. 37. LIMITATIONS ON CLAIMS AGAINST FUND. (a) An action 25-3 for a judgment that results in an order for collection from the 25-4 inspection recovery fund must be commenced not later than the 25-5 second anniversary of the date of the accrual of the cause of 25-6 action. 25-7 (b) If an aggrieved person commences an action for a 25-8 judgment that may result in collection from the inspection recovery 25-9 fund, the inspector who is the subject of the lawsuit shall 25-10 promptly notify the board in writing. 25-11 (c) The failure by an aggrieved person to comply with this 25-12 section constitutes a waiver of any right to recover from the 25-13 inspection recovery fund. 25-14 Sec. 38. PREREQUISITES FOR CLAIMS AGAINST FUND. (a) If an 25-15 aggrieved person recovers a valid judgment in a court of competent 25-16 jurisdiction against an inspector on the grounds described in 25-17 Section 36 of this article, the aggrieved person may, after final 25-18 judgment has been entered, execution returned nulla bona, and a 25-19 judgment lien perfected, file a verified claim in the court in 25-20 which the judgment was entered. After the 20th day after the date 25-21 written notice was given to the board and the judgment debtor, the 25-22 aggrieved person may apply to the court in which the judgment was 25-23 rendered for an order directing payment out of the inspection 25-24 recovery fund in the amount unpaid on the judgment, subject to the 25-25 limitations under Section 39 of this article. 25-26 (b) The court shall promptly proceed on the aggrieved 25-27 person's application. On hearing the application, the aggrieved 26-1 person is required to show: 26-2 (1) that the judgment is based on facts allowing 26-3 recovery under Section 36 of this article; 26-4 (2) that the person is not a spouse of the debtor or 26-5 the personal representative of the spouse; 26-6 (3) that the person has obtained a judgment under 26-7 Section 36 of this article that is not subject to a stay or 26-8 discharge in bankruptcy, stating the amount of the judgment and the 26-9 amount owing on the judgment at the date of the application; 26-10 (4) that, based on the best information available, the 26-11 judgment debtor lacks sufficient attachable assets in this state or 26-12 any other state to satisfy the judgment; and 26-13 (5) the amount that may be realized from the sale of 26-14 real or personal property or other assets liable to be sold or 26-15 applied in satisfaction of the judgment and the balance remaining 26-16 due on the judgment after application of the amount that may be 26-17 realized. 26-18 (c) The court shall order the board to pay from the 26-19 inspection recovery fund the amount the court finds to be payable 26-20 on the claim, consistent with the limitations contained in Section 26-21 39 of this article, if the court is satisfied after hearing: 26-22 (1) of the truth of all matters required to be shown 26-23 by the aggrieved person under Subsection (b) of this section; and 26-24 (2) that the aggrieved person has satisfied all the 26-25 requirements of Subsections (b)(4) and (5) of this section. 26-26 (d) On receipt of notice of entry of a final judgment and 26-27 that a hearing is to be conducted under Subsection (b), the board 27-1 may notify the attorney general of the board's desire to enter an 27-2 appearance, file a response, appear at the court hearing, defend 27-3 the action, or take other appropriate action. In taking action, 27-4 the board and the attorney general shall act only to protect the 27-5 fund from spurious or unjust claims or to ensure compliance with 27-6 the requirements for recovery under this section. 27-7 (e) In hearing the application, the board may relitigate any 27-8 material and relevant issue that was determined in the underlying 27-9 action on which the judgment in favor of the applicant was based. 27-10 (f) A recovery on the judgment against a single defendant 27-11 made before payment from the inspection recovery fund must be 27-12 applied by the creditor first to actual damages. 27-13 (g) If, on the order of the court, the board pays from the 27-14 inspection recovery fund an amount to the judgment creditor, the 27-15 board is subrogated to all of the rights of the judgment creditor 27-16 to the extent of the amount paid. The judgment creditor shall 27-17 assign all the creditor's right, title, and interest in the 27-18 judgment up to the amount paid by the board. The amount paid by 27-19 the board has priority for repayment on a subsequent recovery on 27-20 the judgment. Any amount in interest recovered by the board on the 27-21 judgment shall be deposited to the credit of the fund. 27-22 Sec. 39. LIMITATIONS ON PAYMENT FROM FUND. (a) 27-23 Notwithstanding any other provision of this article, payments from 27-24 the inspection recovery fund are subject to the following 27-25 conditions and limitations: 27-26 (1) payments may be made only under an order by a 27-27 court of competent jurisdiction, as provided by Section 38 of this 28-1 article, and in the manner prescribed by this section; 28-2 (2) payments for claims, including attorney's fees, 28-3 interest, and court costs, arising out of the same transaction are 28-4 limited in the aggregate to $7,500, regardless of the number of 28-5 claimants; and 28-6 (3) payments for claims based on judgments against an 28-7 inspector may not exceed in the aggregate $15,000 until the fund 28-8 has been reimbursed by the inspector for all amounts paid. 28-9 (b) A person receiving payment from the inspection recovery 28-10 fund under Subsection (a) of this section is entitled to receive 28-11 reasonable attorney's fees as determined by the court, subject to 28-12 the limitations stated in that subsection. 28-13 Sec. 40. CONSUMER NOTIFICATION. An inspector licensed under 28-14 this article shall notify consumers and service recipients of the 28-15 availability of the inspection recovery fund for reimbursing 28-16 certain aggrieved persons. The notice must include the name, 28-17 mailing address, and telephone number of the board and any other 28-18 information required by board rule. The notification may be 28-19 provided: 28-20 (1) on a written contract for the services of an 28-21 inspector; 28-22 (2) on a brochure distributed by an inspector; 28-23 (3) on a sign prominently displayed in the place of 28-24 business of an inspector; 28-25 (4) in a bill or receipt for service provided by an 28-26 inspector; or 28-27 (5) on a written inspection report. 29-1 Sec. 41. OPERATION OF FUND; NECESSARY BALANCES. (a) 29-2 Section 403.095, Government Code, does not apply to the inspection 29-3 recovery fund or the inspector regulation account. 29-4 (b) If on December 31 of any year the balance remaining in 29-5 the inspection recovery fund is less than $300,000, each inspector, 29-6 on the next renewal of the person's license, shall pay, in addition 29-7 to the license renewal fee, a fee of $75, or a pro rata share of 29-8 the amount necessary to bring the fund to $450,000, whichever is 29-9 less, to be deposited in the inspection recovery fund. 29-10 (c) If on December 31 of any year the balance remaining in 29-11 the inspection recovery fund is greater than $600,000, the amount 29-12 of money in excess of $600,000 shall be transferred to a separate 29-13 account in the general revenue fund to be known as the inspector 29-14 regulation account. The money in the inspector regulation account 29-15 may be used only for the payment of costs incurred by the board in 29-16 the regulation of inspectors. 29-17 Sec. 42. RECOMMENDATIONS BY INTERESTED PARTIES. The board 29-18 shall consider the recommendations of all interested parties 29-19 relating to the qualifications and licensing of inspectors to 29-20 assure the public of a quality professional inspection system in 29-21 real estate transactions in this state. 29-22 Sec. 43. ADVERTISING. (a) The board may not adopt rules 29-23 restricting competitive bidding or advertising by a license holder 29-24 except to prohibit false, misleading, or deceptive practices. 29-25 (b) In its rules to prohibit false, misleading, or deceptive 29-26 practices, the board may not include a rule that: 29-27 (1) restricts the use of any medium for advertising; 30-1 (2) restricts the use of a license holder's personal 30-2 appearance or voice in an advertisement; 30-3 (3) relates to the size or duration of an 30-4 advertisement by a license holder; or 30-5 (4) restricts a license holder's advertisement under a 30-6 trade name. 30-7 SECTION 2. Section 23, The Real Estate License Act (Article 30-8 6573a, Vernon's Texas Civil Statutes), is repealed. 30-9 SECTION 3. (a) The initial members appointed to the Texas 30-10 Real Estate Inspector Licensing Board under Article 6573a.3, 30-11 Revised Statutes, as added by this Act, shall be appointed as 30-12 follows: 30-13 (1) for public members: 30-14 (A) two members for a term expiring February 1, 30-15 1999; 30-16 (B) two members for a term expiring February 1, 30-17 2001; and 30-18 (C) one member for a term expiring February 1, 30-19 2003; and 30-20 (2) for professional inspector members: 30-21 (A) one member for a term expiring February 1, 30-22 1999; 30-23 (B) one member for terms expiring February 1, 30-24 2001; and 30-25 (C) two members for terms expiring February 1, 30-26 2003. 30-27 (b) The initial professional inspector members of the Texas 31-1 Real Estate Inspector Licensing Board appointed under this section 31-2 must have been issued an inspector's license by the Texas Real 31-3 Estate Commission. 31-4 (c) The members of the Texas Real Estate Inspector Committee 31-5 serving on August 31, 1997 shall serve as members of the Texas Real 31-6 Estate Inspector Licensing Board until the initial members of the 31-7 Texas Real Estate Inspector Licensing Board are appointed by the 31-8 governor and are confirmed by the senate as provided by Article 31-9 6573a.3, Revised Statutes, as added by this Act. 31-10 SECTION 4. (a) The unobligated and unexpended balance of 31-11 the appropriation made to the Texas Real Estate Commission for the 31-12 regulation of real estate inspectors for the fiscal year ending 31-13 August 31, 1997, is transferred to the Texas Real Estate Inspector 31-14 Licensing Board for the purposes of implementing Article 6573a.3, 31-15 Revised Statutes, as added by this Act. 31-16 (b) The administrator of the Texas Real Estate Commission 31-17 shall identify the records and property in the custody of the 31-18 commission relating to the licensing of real estate inspectors 31-19 under Section 23, The Real Estate License Act (Article 6573a, 31-20 Vernon's Texas Civil Statutes), as that section existed on the day 31-21 before the effective date of this Act, and those records and 31-22 property, including any money in the real estate inspector 31-23 regulation account and the real estate inspection recovery fund, 31-24 shall be transferred to the Texas Real Estate Inspector Licensing 31-25 Board. 31-26 (c) The Texas Real Estate Inspector Committee is abolished 31-27 on the effective date of this Act. 32-1 (d) A person licensed as an apprentice inspector, a real 32-2 estate inspector, or a professional inspector under Section 23, The 32-3 Real Estate License Act (Article 6573a, Vernon's Texas Civil 32-4 Statutes), shall be issued an appropriate license, under Article 32-5 6573a.3, Revised Statutes, as added by this Act, on the renewal 32-6 date of the license issued under Section 23, The Real Estate 32-7 License Act (Article 6573a, Vernon's Texas Civil Statutes), if all 32-8 other requirements of this Act are met. A person who receives a 32-9 license under this subsection is subject to Article 6573a.3, 32-10 Revised Statutes, as added by this Act, when applying for a real 32-11 estate inspector or professional inspector license. A holder of a 32-12 license issued under this subsection shall complete the continuing 32-13 education requirements of Article 6573a.3, Revised Statutes, as 32-14 added by this Act, before the initial renewal of a license under 32-15 that article. 32-16 (e) The Texas Real Estate Inspector Licensing Board may 32-17 adopt the rules relating to real estate inspectors of the Texas 32-18 Real Estate Inspector Committee or the Texas Real Estate Commission 32-19 and may adopt emergency rules under Chapter 2001, Government Code, 32-20 as necessary to provide a smooth transition between the former law 32-21 and Article 6573a.3, Revised Statutes, as added by this Act. 32-22 SECTION 5. (a) The change in law made by this Act applies 32-23 only to an offense committed on or after the effective date of this 32-24 Act. For purposes of this section, an offense is committed before 32-25 the effective date of this Act if any element of the offense occurs 32-26 before that date. 32-27 (b) An offense committed before the effective date of this 33-1 Act is covered by the law in effect when the offense was committed, 33-2 and the former law is continued in effect for that purpose. 33-3 SECTION 6. (a) An investigation or disciplinary action by 33-4 the Texas Real Estate Commission pending on the effective date of 33-5 this Act shall be continued under Article 6573a.3, Revised 33-6 Statutes, as added by this Act, by the Texas Real Estate Inspector 33-7 Licensing Board. The administration of a disciplinary matter 33-8 conducted under this subsection is to be conducted by the Texas 33-9 Real Estate Inspector Licensing Board. 33-10 (b) A claim against the real estate inspection recovery fund 33-11 pending on the effective date of this Act is governed by the law in 33-12 effect on the date the claim arose, and the former law is continued 33-13 in effect for that purpose. 33-14 SECTION 7. This Act takes effect September 1, 1997. 33-15 SECTION 8. The importance of this legislation and the 33-16 crowded condition of the calendars in both houses create an 33-17 emergency and an imperative public necessity that the 33-18 constitutional rule requiring bills to be read on three several 33-19 days in each house be suspended, and this rule is hereby suspended, 33-20 and that this Act take effect and be in force according to its 33-21 terms, and it is so enacted.