By Danburg H.B. No. 2416
75R6484 CAG-F
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 may adopt:
3-19 (1) rules for the licensing of inspectors;
3-20 (2) rules relating to the enforcement of this article
3-21 and discipline of an inspector licensed under this article;
3-22 (3) rules relating to the education and experience
3-23 requirements for licensing as an inspector;
3-24 (4) rules relating to the qualifying examination
3-25 required for licensing as an inspector;
3-26 (5) rules relating to the approval of education
3-27 providers or schools providing inspection-related courses for core
4-1 inspection and continuing education courses;
4-2 (6) rules establishing a code of professional conduct
4-3 and ethics for inspectors;
4-4 (7) reasonable fees in amounts necessary to implement
4-5 this article, including a license application fee, an examination
4-6 fee, a license renewal fee, or any other fee required by law;
4-7 (8) rules relating to the length and content of core
4-8 inspection courses and continuing education requirements for an
4-9 inspector;
4-10 (9) rules relating to the standards of practice for
4-11 conducting an inspection;
4-12 (10) rules relating to grounds for granting or denying
4-13 an application for a license;
4-14 (11) rules prescribing the form and content of an
4-15 application or form required under this article; and
4-16 (12) rules relating to the design and use of a seal or
4-17 imprint on reports and other documents.
4-18 (c) The board may employ an administrator, an assistant
4-19 administrator, or other staff necessary to implement this article.
4-20 The board may contract with another agency or board for the
4-21 provision of goods or services necessary to implement this article.
4-22 (d) The board shall adopt a seal. A copy of a record of the
4-23 board, certified and authenticated by the seal, shall be received
4-24 in evidence in a court and considered as the original.
4-25 (e) The board may adopt and enforce rules necessary for the
4-26 performance of its duties, establish standards of conduct and
4-27 ethics for inspectors, or ensure compliance with this article.
5-1 (f) In addition to any other action, proceeding, or remedy,
5-2 the board may institute an action in district court in its own name
5-3 to enjoin any violation of this article or a board rule. In filing
5-4 such an action, the board is not required to allege or prove either
5-5 that an adequate remedy at law does not exist or that substantial
5-6 or irreparable damage would result from the continued violation. A
5-7 party to an action filed under this section may appeal to an
5-8 appellate court. The board is not required to give an appeal bond
5-9 in any action or proceeding to enforce this article.
5-10 (g) Money derived from fees, assessments, or charges under
5-11 this article shall be paid by the board to the comptroller for
5-12 safekeeping and shall be placed by the comptroller in a separate
5-13 fund to be available for the use of the board in the administration
5-14 of this article, including the payment of expenses related to
5-15 equipment and maintenance of supplies for the offices or quarters
5-16 occupied by the board and necessary travel expenses for the board
5-17 or its employees. The comptroller shall, on requisition of the
5-18 board, draw warrants from time to time for the amount specified in
5-19 the requisition. All money spent in the administration of this
5-20 article shall be specified and determined by an itemized
5-21 appropriation in the General Appropriations Act for the Texas Real
5-22 Estate Inspector Licensing Board. The board shall file with the
5-23 governor and the presiding officer of each house of the legislature
5-24 an annual detailed written report accounting for all funds received
5-25 and disbursed by the board during the preceding fiscal year. The
5-26 annual report must be in the form and reported in the time provided
5-27 by the General Appropriations Act.
6-1 (h) The board may contract for services or authorize
6-2 specific employees to conduct hearings and render final decisions
6-3 in contested cases. The board may employ or contract for services
6-4 from another agency, board, or commission of a general counsel,
6-5 attorneys, investigators, and support staff to administer and
6-6 enforce this article.
6-7 Sec. 4. TEXAS REAL ESTATE INSPECTOR LICENSING BOARD.
6-8 (a) The Texas Real Estate Inspector Licensing Board consists of
6-9 nine members appointed by the governor with the advice and consent
6-10 of the senate.
6-11 (b) Five members of the board must be professional
6-12 inspectors. Three members of the board must be public members. One
6-13 member of the board must be a licensed real estate broker.
6-14 (c) The members of the board hold office for staggered terms
6-15 of six years, with the terms of three members expiring February 1
6-16 of each odd-numbered year. Each member holds office until the
6-17 member's successor is appointed. Not later than the 15th day after
6-18 the date of the person's appointment to the board, the person must
6-19 take the constitutional oath of office.
6-20 (d) An appointment to the board shall be made without regard
6-21 to the sex, race, color, age, disability, religion, or national
6-22 origin of the appointee.
6-23 (e) A professional inspector member of the board may not
6-24 hold an active real estate broker or salesman license and must have
6-25 been licensed and practicing as an inspector for at least 10 years
6-26 preceding appointment to the board.
6-27 (f) A member of the board is entitled to compensation and
7-1 reimbursement of the member's travel expenses as provided by the
7-2 General Appropriations Act.
7-3 (g) The board shall elect annually from its membership a
7-4 presiding officer, assistant presiding officer, and secretary. The
7-5 presiding officer and assistant presiding officer must be
7-6 professional inspectors.
7-7 (h) Five members of the board are necessary for a quorum.
7-8 (i) The board shall adopt procedural rules to be used by the
7-9 board in implementing its powers and duties.
7-10 (j) The board and its employees and agents are subject to
7-11 Chapters 551 and 2001, Government Code.
7-12 (k) The board shall meet semiannually. The board may also
7-13 meet at the call of a majority of its members.
7-14 Sec. 5. REMOVAL OF MEMBER. (a) It is a ground for removal
7-15 from the board if the member:
7-16 (1) does not have at the time of appointment or does
7-17 not maintain during service on the board the qualifications
7-18 required by Section 4 of this article;
7-19 (2) cannot discharge the member's duties for a
7-20 substantial part of the term for which the member is appointed
7-21 because of illness or disability;
7-22 (3) violates a prohibition established by Section 6 of
7-23 this article; or
7-24 (4) is absent from more than half of the regularly
7-25 scheduled board meetings that the member is eligible to attend
7-26 during each year, unless the absence is excused by the board.
7-27 (b) The validity of an action of the board is not affected
8-1 by the fact that it was taken when a ground for removal of a board
8-2 member existed.
8-3 (c) If a board member has knowledge that a potential ground
8-4 for removal exists, the member shall notify the presiding officer
8-5 of the board of the potential ground. The presiding officer shall
8-6 then notify the governor and the attorney general that a potential
8-7 ground for removal exists. If the potential ground for removal
8-8 involves the presiding officer, the member shall notify the next
8-9 highest officer of the board, who shall notify the governor and the
8-10 attorney general that a potential ground for removal exists.
8-11 Sec. 6. CONFLICTS OF INTEREST. (a) An officer, employee,
8-12 or paid consultant of a Texas trade association in the field of
8-13 real estate inspections may not be a public member of the board or
8-14 employee of the board who is exempt from the state's position
8-15 classification plan or is compensated at or above the amount
8-16 prescribed by the General Appropriations Act for step 1, salary
8-17 group 17, of the position classification salary schedule.
8-18 (b) A person who is the spouse of an officer, manager, or
8-19 paid consultant of a Texas trade association in the field of real
8-20 estate inspections may not be a public member of the board and may
8-21 not be an employee of the board who is exempt from the state's
8-22 position classification plan or is compensated at or above the
8-23 amount prescribed by the General Appropriations Act for step 1,
8-24 salary group 17, of the position classification salary schedule.
8-25 (c) For the purposes of this section, a Texas trade
8-26 association is a nonprofit, cooperative, and voluntarily joined
8-27 association of business or professional competitors in this state
9-1 designed to assist its members and its industry or profession in
9-2 dealing with mutual business or professional problems and in
9-3 promoting their common interest.
9-4 Sec. 7. LOBBYIST RESTRICTION. A person may not serve as a
9-5 member of the board or act as the general counsel to the board if
9-6 the person is required to register as a lobbyist under Chapter 305,
9-7 Government Code, because of the person's activities for
9-8 compensation on behalf of a profession related to the operation of
9-9 the board.
9-10 Sec. 8. PUBLIC PARTICIPATION. The board shall develop and
9-11 implement policies that provide the public with a reasonable
9-12 opportunity to appear before the board and to speak on any issue
9-13 under the jurisdiction of the board.
9-14 Sec. 9. MEMBER TRAINING. (a) Before a member of the board
9-15 may assume the member's duties and before the member may be
9-16 confirmed by the senate, the member must complete at least one
9-17 course of a training program established by the board.
9-18 (b) A training program established under this section must
9-19 provide information to the member regarding:
9-20 (1) the enabling legislation that created the board to
9-21 which the member is appointed to serve;
9-22 (2) the programs operated by the board;
9-23 (3) the role and functions of the board;
9-24 (4) the rules of the board, with an emphasis on the
9-25 rules that relate to disciplinary and investigatory authority;
9-26 (5) the current budget for the board;
9-27 (6) the results of the most recent formal audit of the
10-1 board;
10-2 (7) the requirements of the:
10-3 (A) open meetings law, Chapter 551, Government
10-4 Code;
10-5 (B) open records law, Chapter 552, Government
10-6 Code; and
10-7 (C) administrative procedure law, Chapter 2001,
10-8 Government Code;
10-9 (8) the requirements of the conflict of interest laws
10-10 and other laws relating to public officials; and
10-11 (9) any applicable ethics policies adopted by the
10-12 agency or the Texas Ethics Commission.
10-13 Sec. 10. RESPONSIBILITIES OF BOARD AND STAFF. The board
10-14 shall develop and implement policies that clearly separate the
10-15 policy-making responsibilities of the board and the management
10-16 responsibilities of the board and the staff of the board.
10-17 Sec. 11. CAREER LADDER. The board or the board's designee
10-18 shall develop an intra-agency career ladder program that addresses
10-19 opportunities for mobility and advancement for employees within the
10-20 board. The program must require intra-agency posting of all
10-21 positions concurrently with any public posting.
10-22 Sec. 12. PERFORMANCE REVIEW. The board or the board's
10-23 designee shall develop a system of annual performance evaluations
10-24 that are based on documented employee performance. All merit pay
10-25 for board employees must be based on the system established under
10-26 this section.
10-27 Sec. 13. PUBLIC INFORMATION. The board or the board's
11-1 designee shall provide to members of the board and to board
11-2 employees, as often as necessary, information regarding their
11-3 qualifications for office or employment under this article and
11-4 their responsibilities under applicable laws relating to standards
11-5 of conduct for state officers or employees.
11-6 Sec. 14. EQUAL EMPLOYMENT OPPORTUNITY. (a) The board or
11-7 the board's designee shall prepare and maintain a written policy
11-8 statement to assure implementation of a program of equal employment
11-9 opportunity under which all personnel transactions are made without
11-10 regard to race, color, disability, sex, religion, age, or national
11-11 origin. The policy statement must include:
11-12 (1) personnel policies, including policies relating to
11-13 recruitment, evaluation, selection, appointment, training, and
11-14 promotion of personnel that are in compliance with requirements of
11-15 Chapter 21, Labor Code;
11-16 (2) a comprehensive analysis of the board workforce
11-17 that meets federal and state guidelines;
11-18 (3) procedures by which a determination can be made
11-19 about the extent of underuse in the board workforce of all persons
11-20 for whom federal or state guidelines encourage a more equitable
11-21 balance; and
11-22 (4) reasonable methods to appropriately address those
11-23 areas of underuse.
11-24 (b) A policy statement prepared under Subsection (a) of this
11-25 section must cover an annual period, be updated annually and
11-26 reviewed by the Commission on Human Rights for compliance with
11-27 Subsection (a)(1) of this section, and be filed with the governor's
12-1 office.
12-2 (c) The governor's office shall deliver a biennial report to
12-3 the legislature based on the information received under Subsection
12-4 (b) of this section. The report may be made separately or as a
12-5 part of other biennial reports made to the legislature.
12-6 Sec. 15. PUBLIC INTEREST INFORMATION. (a) The board shall
12-7 prepare information of public interest describing the functions of
12-8 the board and the procedures by which complaints are filed with and
12-9 resolved by the board. The board shall make the information
12-10 available to the public and appropriate state agencies.
12-11 (b) The board by rule shall establish methods by which
12-12 consumers and service recipients are notified of the name, mailing
12-13 address, and telephone number of the board for the purpose of
12-14 directing complaints to the board. The board may provide for that
12-15 notification:
12-16 (1) on each registration form, application, or written
12-17 contract for services of an individual licensed under this article;
12-18 (2) on a sign prominently displayed in the place of
12-19 business of each individual licensed under this article; or
12-20 (3) in a bill for service provided by an individual
12-21 licensed under this article.
12-22 Sec. 16. INFORMATION ON COMPLAINTS. The board shall keep
12-23 information about each complaint filed with the board. The
12-24 information must include:
12-25 (1) the date the complaint is received;
12-26 (2) the name of the complainant;
12-27 (3) the subject matter of the complaint;
13-1 (4) a record of all persons contacted in relation to
13-2 the complaint;
13-3 (5) a summary of the results of the review or
13-4 investigation of the complaint; and
13-5 (6) for complaints for which the board took no action,
13-6 an explanation of the reason the complaint was closed without
13-7 action.
13-8 Sec. 17. NOTIFICATION OF COMPLAINTS. The board shall keep
13-9 a file about each written complaint filed with the board that the
13-10 board has authority to resolve. The board shall provide to the
13-11 person filing the complaint and the persons or entities complained
13-12 about the board's policies and procedures pertaining to complaint
13-13 investigation and resolution. The board, at least quarterly and
13-14 until final disposition of the complaint, shall notify the person
13-15 filing the complaint and the persons or entities complained about
13-16 of the status of the complaint unless the notice would jeopardize
13-17 an undercover investigation.
13-18 Sec. 18. ACCESSIBILITY. The board shall comply with federal
13-19 and state laws related to program and facility accessibility. The
13-20 board shall also prepare and maintain a written plan that describes
13-21 how a person who does not speak English can be provided reasonable
13-22 access to the board's programs and services.
13-23 Sec. 19. LICENSE REQUIRED. A person may not act as a
13-24 professional inspector, a real estate inspector, or an apprentice
13-25 inspector of improvements to real property unless the person holds
13-26 the appropriate license issued by the board.
13-27 Sec. 20. POWER AND DUTIES OF LICENSE HOLDER. (a) A
14-1 professional inspector license holder may represent to the public
14-2 that the person is trained and qualified to perform an inspection
14-3 and may accept employment to perform an inspection of improvements
14-4 to real property for any party.
14-5 (b) A real estate inspector license holder may represent to
14-6 the public that the person is trained and qualified to perform
14-7 inspections under the indirect supervision of a professional
14-8 inspector and may accept employment to perform an inspection of
14-9 improvements to real property for any party.
14-10 (c) An apprentice inspector license holder may perform
14-11 activities under the direct supervision of a professional inspector
14-12 or real estate inspector license holder that are necessary to
14-13 become qualified to perform an inspection.
14-14 Sec. 21. ELIGIBILITY; APPLICATION. (a) To receive a
14-15 license as an apprentice inspector, an applicant must:
14-16 (1) be a citizen of the United States or a lawfully
14-17 admitted alien;
14-18 (2) be a resident of this state at the time of the
14-19 filing of the application;
14-20 (3) be sponsored by a professional inspector license
14-21 holder who is determined by the commission to have performed 200 or
14-22 more inspections;
14-23 (4) be 18 years of age or older; and
14-24 (5) satisfy the board as to the applicant's honesty,
14-25 trustworthiness, and integrity.
14-26 (b) To receive a license as a real estate inspector, an
14-27 applicant must:
15-1 (1) have been licensed as an apprentice inspector for
15-2 three months or more;
15-3 (2) have performed 25 or more inspections under direct
15-4 supervision before the date of the filing of an application for the
15-5 license;
15-6 (3) satisfy the board as to the applicant's honesty,
15-7 trustworthiness, integrity, and competency;
15-8 (4) present satisfactory evidence to the board of
15-9 completion by the applicant of 200 or more classroom hours in core
15-10 inspection courses;
15-11 (5) satisfy the examination requirements under Section
15-12 22 of this article; and
15-13 (6) be sponsored by a professional inspector license
15-14 holder who is determined by the commission to have performed 200 or
15-15 more inspections.
15-16 (c) To receive a license as a professional inspector, an
15-17 applicant must:
15-18 (1) have been licensed as a real estate inspector for
15-19 at least one year;
15-20 (2) have performed 175 or more inspections under
15-21 indirect supervision before the date of the filing of an
15-22 application for the license;
15-23 (3) submit satisfactory evidence to the board of the
15-24 completion by the applicant, since the issuance of a real estate
15-25 inspector license, of 64 or more classroom hours of core inspection
15-26 courses, of which 32 classroom hours must be related to the study
15-27 of standards of practice or ethics of inspection or legal issues
16-1 related to the profession of inspections; and
16-2 (4) satisfy the examination requirements under Section
16-3 22 of this article.
16-4 (d) The board by rule shall provide for the substitution of
16-5 additional relevant experience or education to satisfy the
16-6 requirements of performing a specified number of inspections or
16-7 having been previously licensed as an apprentice inspector or a
16-8 real estate inspector under this section. A rule adopted under
16-9 this subsection may not require an applicant seeking to substitute
16-10 relevant experience or education for other licensing requirements
16-11 to complete more than 60 additional classroom hours of core
16-12 inspection courses.
16-13 (e) An applicant must file an application for a license on a
16-14 form prescribed by the board.
16-15 Sec. 22. EXAMINATION. (a) The board shall prescribe and
16-16 prepare or contract for the preparation of a licensing examination.
16-17 The board may authorize a contract vendor to collect a fee for the
16-18 examination in an amount determined by the board.
16-19 (b) A licensing examination must evaluate competence in the
16-20 subject matter of any core inspection courses.
16-21 (c) The licensing examination shall be offered at least once
16-22 every two months in Austin.
16-23 (d) If an applicant fails the examination, the applicant may
16-24 apply for reexamination by filing a request with the board and
16-25 paying the examination fee.
16-26 (e) An applicant must satisfy the examination requirement
16-27 during the six-month period after the date the license application
17-1 is filed. A license applicant who fails to satisfy the examination
17-2 requirement within that time must submit a new license application
17-3 to the board and pay the examination fee to be eligible for
17-4 examination.
17-5 (f) If a license applicant fails the examination four
17-6 consecutive times in connection with an application for the same
17-7 license, the applicant may not apply for reexamination or submit a
17-8 new license application with the board until the expiration of six
17-9 months after the date the applicant failed the last examination.
17-10 (g) Not later than the 30th day after the date a licensing
17-11 examination is administered under this section, the board shall
17-12 notify each examinee of the results of the examination. However,
17-13 if an examination is graded or reviewed by a national testing
17-14 service, the board shall notify examinees of the results of the
17-15 examination not later than the 14th day after the date the board
17-16 receives the results from the testing service. If the notice of
17-17 examination results graded or reviewed by a national testing
17-18 service will be delayed for longer than 90 days after the
17-19 examination date, the board shall notify the examinee of the reason
17-20 for the delay before the 90th day after the examination date.
17-21 (h) If requested in writing by a person who fails a
17-22 licensing examination administered under this section, the board
17-23 shall furnish the person with an analysis of the person's
17-24 performance on the examination.
17-25 Sec. 23. ISSUANCE OF LICENSE. (a) The board shall issue an
17-26 apprentice inspector license, a real estate inspector license, or a
17-27 professional inspector license to an applicant who possesses the
18-1 required qualifications, passes the appropriate examination, if
18-2 required, and pays the fee required by Section 29 of this article.
18-3 (b) The board may waive a license requirement for an
18-4 applicant with a valid license from another state having license
18-5 requirements substantially equivalent to those of this state.
18-6 (c) On receipt of notice that the person has successfully
18-7 completed the licensing examination under Section 22 of this
18-8 article, the person must pay, in addition to any other fees, a fee
18-9 not to exceed $200, to be deposited in the inspection recovery fund
18-10 before the board issues the person a license.
18-11 Sec. 24. RECIPROCAL LICENSES. The board may waive any
18-12 prerequisite to obtaining a license for an applicant with a valid
18-13 license from another state with which this state has a reciprocity
18-14 agreement. The board may enter into reciprocal agreements with
18-15 other states to allow for licensing by reciprocity.
18-16 Sec. 25. EXPIRATION OF LICENSE; RENEWAL. (a) A license
18-17 issued under this article expires on the first anniversary of the
18-18 date it is issued.
18-19 (b) A person may renew an unexpired license by paying to the
18-20 board before the expiration date of the license the required
18-21 renewal fee.
18-22 (c) If a person's license has been expired for 90 days or
18-23 less, the person may renew the license by paying to the board the
18-24 required renewal fee and a fee that is one-half of the examination
18-25 fee for the license.
18-26 (d) If a person's license has been expired for longer than
18-27 90 days but for less than two years, the person may renew the
19-1 license by paying to the board the unpaid renewal fees and a fee
19-2 that is equal to the examination fee for the license.
19-3 (e) Except as provided by Section 26 of this article, if a
19-4 person's license has been expired for two years or longer, the
19-5 person may not renew the license and may obtain a new license only
19-6 by submitting to reexamination, if required, and complying with the
19-7 requirements and procedures for obtaining an original license.
19-8 Sec. 26. LAPSED LICENSE. (a) The board may renew without
19-9 reexamination an expired license of a person who was licensed in
19-10 this state, moved to another state, and is currently licensed and
19-11 has been in practice in the other state for at least one year
19-12 before the date of the application. The person must pay to the
19-13 board a fee that is equal to the examination fee for the license
19-14 and an additional fee, not to exceed $200, to be deposited in the
19-15 inspection recovery fund.
19-16 (b) The board may issue a license to an applicant under this
19-17 section who has satisfied all requirements for a license, including
19-18 requirements satisfied under Section 21(d) of this article, as a
19-19 professional inspector or real estate inspector if:
19-20 (1) the applicant was previously licensed as a
19-21 professional inspector or real estate inspector during the 24
19-22 months before the date of the filing of the application;
19-23 (2) the applicant is sponsored by a professional
19-24 inspector, if the applicant is applying for a real estate inspector
19-25 license; and
19-26 (3) the applicant satisfies the board as to the
19-27 applicant's honesty, trustworthiness, and integrity.
20-1 Sec. 27. NOTIFICATION; CHANGE OF ADDRESS. (a) Before the
20-2 30th day preceding the expiration date of a person's license, the
20-3 board shall send written notice of the impending license expiration
20-4 to the person at the person's last known address according to the
20-5 records of the board.
20-6 (b) An inspector shall notify the board and pay the required
20-7 fee, if any, not later than the 30th day after the date a change of
20-8 place of business occurs.
20-9 Sec. 28. INACTIVE LICENSE. The board by rule may adopt
20-10 terms and conditions by which an inspector may apply for, renew, or
20-11 place a license on inactive status and rules by which an inactive
20-12 inspector may return to active status.
20-13 Sec. 29. FEES. (a) The board shall charge and collect
20-14 reasonable and necessary fees to recover the costs of administering
20-15 this article.
20-16 (b) A fee may be paid by cash, check, cashier's check, or
20-17 money order.
20-18 (c) A fee set by the board shall be reviewed annually and
20-19 reduced to the extent that the costs of administering this article
20-20 are funded by the inspector regulation account established under
20-21 Section 41 of this article.
20-22 Sec. 30. CONTINUING EDUCATION STANDARDS. (a) The board
20-23 shall recognize, prepare, or administer continuing education
20-24 programs for inspectors.
20-25 (b) Before a real estate inspector license holder may renew
20-26 a license, the holder must submit satisfactory evidence to the
20-27 board of successful completion of at least 16 classroom hours of
21-1 continuing education courses in the year preceding the date of
21-2 renewal.
21-3 (c) Before a professional inspector license holder may renew
21-4 a license, the holder must submit satisfactory evidence to the
21-5 board of successful completion of at least 16 classroom hours of
21-6 continuing education courses in the year preceding the date of
21-7 renewal.
21-8 (d) If an inspector does not complete any continuing
21-9 education requirement before the date of renewal of a license, the
21-10 inspector may renew the inspector's license if the inspector:
21-11 (1) completes the requirement not later than the 90th
21-12 day after the date of renewal; and
21-13 (2) pays a fee, determined by the board, not to exceed
21-14 $300.
21-15 Sec. 31. PROHIBITED ACTS. An inspector may not:
21-16 (1) accept an assignment for an inspection if the
21-17 employment or fee is contingent on the reporting of a specific,
21-18 predetermined condition of the improvements to real property or is
21-19 contingent on the reporting of specific findings other than those
21-20 known by the inspector to be facts at the time of accepting the
21-21 assignment;
21-22 (2) act in a manner or engage in a practice that is
21-23 dishonest or fraudulent or that involves deceit or
21-24 misrepresentation;
21-25 (3) perform an inspection in a negligent or
21-26 incompetent manner, as determined by the standards of practice
21-27 adopted by the board;
22-1 (4) act in the dual capacity of inspector and
22-2 undisclosed principal in a transaction;
22-3 (5) act in the dual capacity of inspector and real
22-4 estate broker or salesman in a transaction;
22-5 (6) perform or agree to perform any repair or
22-6 maintenance in connection with an inspection; or
22-7 (7) violate this article or a rule of the board.
22-8 Sec. 32. OFFENSE. (a) A person commits an offense if the
22-9 person knowingly engages in the business of inspections and does
22-10 not hold a license issued under this article.
22-11 (b) An offense under this section is a Class B misdemeanor.
22-12 Sec. 33. DISCIPLINARY ACTIONS. (a) The board may conduct
22-13 an administrative hearing and may recommend disciplinary actions in
22-14 contested cases regarding an inspector.
22-15 (b) The board may contract with another agency to conduct
22-16 hearings or may authorize specific persons to conduct hearings and
22-17 render final decisions in contested cases regarding an inspector.
22-18 (c) The board may investigate the actions of an inspector
22-19 and may, after notice and hearing, reprimand, place on probation,
22-20 or suspend or revoke the license of a person for a violation of
22-21 this article or a rule of the board.
22-22 (d) If the board revokes a person's license, the person may
22-23 not apply to the board before the first anniversary of the date of
22-24 revocation.
22-25 (e) A license granted under this article may be revoked by
22-26 the board on proof that the board has made a payment from the
22-27 inspection recovery fund of any amount toward satisfaction of a
23-1 judgment against the inspector. The board may probate an order
23-2 revoking a license. An inspector is not eligible to receive a new
23-3 license until the person has repaid in full, including interest at
23-4 the current legal rate, the amount paid from the inspection
23-5 recovery fund on the person's account.
23-6 (f) This section does not limit the authority of the board
23-7 to take disciplinary action against an inspector for a violation of
23-8 this article or a rule of the board. The repayment in full of an
23-9 obligation to the inspection recovery fund by a person does not
23-10 nullify or modify the effect of any other disciplinary proceeding
23-11 of the board.
23-12 Sec. 34. DISCIPLINARY ACTIONS. The board may revoke,
23-13 suspend, or refuse to renew a license, place on probation a person
23-14 whose license has been suspended, or reprimand a license holder for
23-15 a violation of this article or a rule of the board. If a license
23-16 suspension is probated, the board may require the practitioner:
23-17 (1) to report regularly to the board on matters that
23-18 are the basis of the probation;
23-19 (2) to limit practice to the areas prescribed by the
23-20 board; or
23-21 (3) to continue or review professional education until
23-22 the practitioner attains a degree of skill satisfactory to the
23-23 board in those areas that are the basis of the probation.
23-24 Sec. 35. EXEMPTIONS. (a) This article does not apply to a
23-25 person licensed by this state as an architect, engineer, plumber,
23-26 or heating and air conditioning contractor, a person engaged in the
23-27 business of structural pest control under the Texas Structural Pest
24-1 Control Act (Article 135b-6, Vernon's Texas Civil Statutes), or
24-2 another person who, under a license or registration issued to that
24-3 person, repairs, maintains, or inspects improvements to real
24-4 property and who does not represent to the public through
24-5 solicitation or public advertising that the person is in the
24-6 business of inspecting the improvements, unless the person's
24-7 license or registration permits inspections.
24-8 (b) This article does not prevent a person from performing
24-9 an act that the person is authorized to perform under a license,
24-10 permit, certification, or registration issued by the federal
24-11 government, this state, or a political subdivision.
24-12 (c) A person licensed under this article is exempt from any
24-13 other law that conflicts with this article.
24-14 Sec. 36. INSPECTION RECOVERY FUND. (a) The board shall
24-15 establish an inspection recovery fund.
24-16 (b) The fund shall be used to reimburse a person who suffers
24-17 actual damages by reason of an act committed by an inspector, if:
24-18 (1) the inspector was licensed at the time the act was
24-19 committed; and
24-20 (2) recovery of damages is ordered by a court of
24-21 competent jurisdiction against the inspector.
24-22 (c) The use of the fund is limited to an act that is a
24-23 violation of Section 31 of this article.
24-24 Sec. 37. LIMITATIONS ON CLAIMS AGAINST FUND. (a) An action
24-25 for a judgment that results in an order for collection from the
24-26 inspection recovery fund must be commenced not later than the
24-27 second anniversary of the date of the accrual of the cause of
25-1 action.
25-2 (b) If an aggrieved person commences an action for a
25-3 judgment that may result in collection from the inspection recovery
25-4 fund, the inspector who is the subject of the lawsuit shall
25-5 promptly notify the board in writing.
25-6 (c) The failure by an aggrieved person to comply with this
25-7 section constitutes a waiver of any right to recover from the
25-8 inspection recovery fund.
25-9 Sec. 38. PREREQUISITES FOR CLAIMS AGAINST FUND. (a) If an
25-10 aggrieved person recovers a valid judgment in a court of competent
25-11 jurisdiction against an inspector on the grounds described in
25-12 Section 36 of this article, the aggrieved person may, after final
25-13 judgment has been entered, execution returned nulla bona, and a
25-14 judgment lien perfected, file a verified claim in the court in
25-15 which the judgment was entered. After the 20th day after the date
25-16 written notice was given to the board and the judgment debtor, the
25-17 aggrieved person may apply to the court in which the judgment was
25-18 rendered for an order directing payment out of the inspection
25-19 recovery fund in the amount unpaid on the judgment, subject to the
25-20 limitations under Section 39 of this article.
25-21 (b) The court shall promptly proceed on the aggrieved
25-22 person's application. On hearing the application, the aggrieved
25-23 person is required to show:
25-24 (1) that the judgment is based on facts allowing
25-25 recovery under Section 36 of this article;
25-26 (2) that the person is not a spouse of the debtor or
25-27 the personal representative of the spouse;
26-1 (3) that the person has obtained a judgment under
26-2 Section 36 of this article that is not subject to a stay or
26-3 discharge in bankruptcy, stating the amount of the judgment and the
26-4 amount owing on the judgment at the date of the application;
26-5 (4) that, based on the best information available, the
26-6 judgment debtor lacks sufficient attachable assets in this state or
26-7 any other state to satisfy the judgment; and
26-8 (5) the amount that may be realized from the sale of
26-9 real or personal property or other assets liable to be sold or
26-10 applied in satisfaction of the judgment and the balance remaining
26-11 due on the judgment after application of the amount that may be
26-12 realized.
26-13 (c) The court shall order the board to pay from the
26-14 inspection recovery fund the amount the court finds to be payable
26-15 on the claim, consistent with the limitations contained in Section
26-16 39 of this article, if the court is satisfied after hearing:
26-17 (1) of the truth of all matters required to be shown
26-18 by the aggrieved person under Subsection (b) of this section; and
26-19 (2) that the aggrieved person has satisfied all the
26-20 requirements of Subsections (b)(4) and (5) of this section.
26-21 (d) On receipt of notice of entry of a final judgment and
26-22 that a hearing is to be conducted under Subsection (b), the board
26-23 may notify the attorney general of the board's desire to enter an
26-24 appearance, file a response, appear at the court hearing, defend
26-25 the action, or take other appropriate action. In taking action,
26-26 the board and the attorney general shall act only to protect the
26-27 fund from spurious or unjust claims or to ensure compliance with
27-1 the requirements for recovery under this section.
27-2 (e) In hearing the application, the board may relitigate any
27-3 material and relevant issue that was determined in the underlying
27-4 action on which the judgment in favor of the applicant was based.
27-5 (f) A recovery on the judgment against a single defendant
27-6 made before payment from the inspection recovery fund must be
27-7 applied by the creditor first to actual damages.
27-8 (g) If, on the order of the court, the board pays from the
27-9 inspection recovery fund an amount to the judgment creditor, the
27-10 board is subrogated to all of the rights of the judgment creditor
27-11 to the extent of the amount paid. The judgment creditor shall
27-12 assign all the creditor's right, title, and interest in the
27-13 judgment up to the amount paid by the board. The amount paid by
27-14 the board has priority for repayment on a subsequent recovery on
27-15 the judgment. Any amount in interest recovered by the board on the
27-16 judgment shall be deposited to the credit of the fund.
27-17 Sec. 39. LIMITATIONS ON PAYMENT FROM FUND. (a)
27-18 Notwithstanding any other provision of this article, payments from
27-19 the inspection recovery fund are subject to the following
27-20 conditions and limitations:
27-21 (1) payments may be made only under an order by a
27-22 court of competent jurisdiction, as provided by Section 38 of this
27-23 article, and in the manner prescribed by this section;
27-24 (2) payments for claims, including attorney's fees,
27-25 interest, and court costs, arising out of the same transaction are
27-26 limited in the aggregate to $7,500, regardless of the number of
27-27 claimants; and
28-1 (3) payments for claims based on judgments against an
28-2 inspector may not exceed in the aggregate $15,000 until the fund
28-3 has been reimbursed by the inspector for all amounts paid.
28-4 (b) A person receiving payment from the inspection recovery
28-5 fund under Subsection (a) of this section is entitled to receive
28-6 reasonable attorney's fees as determined by the court, subject to
28-7 the limitations stated in that subsection.
28-8 Sec. 40. CONSUMER NOTIFICATION. An inspector licensed under
28-9 this article shall notify consumers and service recipients of the
28-10 availability of the inspection recovery fund for reimbursing
28-11 certain aggrieved persons. The notice must include the name,
28-12 mailing address, and telephone number of the board and any other
28-13 information required by board rule. The notification may be
28-14 provided:
28-15 (1) on a written contract for the services of an
28-16 inspector;
28-17 (2) on a brochure distributed by an inspector;
28-18 (3) on a sign prominently displayed in the place of
28-19 business of an inspector;
28-20 (4) in a bill or receipt for service provided by an
28-21 inspector; or
28-22 (5) on a written inspection report.
28-23 Sec. 41. OPERATION OF FUND; NECESSARY BALANCES. (a)
28-24 Section 403.095, Government Code, does not apply to the inspection
28-25 recovery fund or the inspector regulation account.
28-26 (b) If on December 31 of any year the balance remaining in
28-27 the inspection recovery fund is less than $300,000, each inspector,
29-1 on the next renewal of the person's license, shall pay, in addition
29-2 to the license renewal fee, a fee of $75, or a pro rata share of
29-3 the amount necessary to bring the fund to $450,000, whichever is
29-4 less, to be deposited in the inspection recovery fund.
29-5 (c) If on December 31 of any year the balance remaining in
29-6 the inspection recovery fund is greater than $600,000, the amount
29-7 of money in excess of $600,000 shall be transferred to a separate
29-8 account in the general revenue fund to be known as the inspector
29-9 regulation account. The money in the inspector regulation account
29-10 may be used only for the payment of costs incurred by the board in
29-11 the regulation of inspectors.
29-12 Sec. 42. RECOMMENDATIONS BY INTERESTED PARTIES. The board
29-13 shall consider the recommendations of all interested parties
29-14 relating to the qualifications and licensing of inspectors to
29-15 assure the public of a quality professional inspection system in
29-16 real estate transactions in this state.
29-17 Sec. 43. ADVERTISING. (a) The board may not adopt rules
29-18 restricting competitive bidding or advertising by a license holder
29-19 except to prohibit false, misleading, or deceptive practices.
29-20 (b) In its rules to prohibit false, misleading, or deceptive
29-21 practices, the board may not include a rule that:
29-22 (1) restricts the use of any medium for advertising;
29-23 (2) restricts the use of a license holder's personal
29-24 appearance or voice in an advertisement;
29-25 (3) relates to the size or duration of an
29-26 advertisement by a license holder; or
29-27 (4) restricts a license holder's advertisement under a
30-1 trade name.
30-2 SECTION 2. Section 23, The Real Estate License Act (Article
30-3 6573a, Vernon's Texas Civil Statutes), is repealed.
30-4 SECTION 3. (a) The initial members appointed to the Texas
30-5 Real Estate Inspector Licensing Board under Article 6573a.3,
30-6 Revised Statutes, as added by this Act, shall be appointed as
30-7 follows:
30-8 (1) for public members:
30-9 (A) one member for a term expiring February 1,
30-10 1999;
30-11 (B) one member for a term expiring February 1,
30-12 2001; and
30-13 (C) one member for a term expiring February 1,
30-14 2003;
30-15 (2) for professional inspector members:
30-16 (A) one member for a term expiring February 1,
30-17 1999;
30-18 (B) two members for terms expiring February 1,
30-19 2001; and
30-20 (C) two members for terms expiring February 1,
30-21 2003; and
30-22 (3) for the real estate broker member, a term expiring
30-23 February 1, 1999.
30-24 (b) The initial professional inspector members of the Texas
30-25 Real Estate Inspector Licensing Board appointed under this section
30-26 must have been issued an inspector's license by the Texas Real
30-27 Estate Commission.
31-1 SECTION 4. (a) The unobligated and unexpended balance of
31-2 the appropriation made to the Texas Real Estate Commission for the
31-3 regulation of real estate inspectors for the fiscal year ending
31-4 August 31, 1997, is transferred to the Texas Real Estate Inspector
31-5 Licensing Board for the purposes of implementing Article 6573a.3,
31-6 Revised Statutes, as added by this Act.
31-7 (b) The administrator of the Texas Real Estate Commission
31-8 shall identify the records and property in the custody of the
31-9 commission relating to the licensing of real estate inspectors
31-10 under Section 23, The Real Estate License Act (Article 6573a,
31-11 Vernon's Texas Civil Statutes), as that section existed on the day
31-12 before the effective date of this Act, and those records and
31-13 property, including any money in the real estate inspector
31-14 regulation account and the real estate inspection recovery fund,
31-15 shall be transferred to the Texas Real Estate Inspector Licensing
31-16 Board.
31-17 (c) The Texas Real Estate Inspector Committee is abolished
31-18 on the effective date of this Act.
31-19 (d) A person licensed as an apprentice inspector, a real
31-20 estate inspector, or a professional inspector under Section 23, The
31-21 Real Estate License Act (Article 6573a, Vernon's Texas Civil
31-22 Statutes), on the day before the effective date of this Act shall
31-23 be issued an appropriate license under Article 6573a.3, Revised
31-24 Statutes, as added by this Act. A person who receives a license
31-25 under this subsection is subject to Article 6573a.3, Revised
31-26 Statutes, as added by this Act, when applying for a real estate
31-27 inspector or professional inspector license. A holder of a license
32-1 issued under this subsection shall complete the continuing
32-2 education requirements of Article 6573a.3, Revised Statutes, as
32-3 added by this Act, before the initial renewal of a license under
32-4 that article.
32-5 (e) The Texas Real Estate Inspector Licensing Board may
32-6 adopt emergency rules under Chapter 2001, Government Code, as
32-7 necessary to provide a smooth transition between the former law and
32-8 Article 6573a.3, Revised Statutes, as added by this Act.
32-9 SECTION 5. (a) The change in law made by this Act applies
32-10 only to an offense committed on or after the effective date of this
32-11 Act. For purposes of this section, an offense is committed before
32-12 the effective date of this Act if any element of the offense occurs
32-13 before that date.
32-14 (b) An offense committed before the effective date of this
32-15 Act is covered by the law in effect when the offense was committed,
32-16 and the former law is continued in effect for that purpose.
32-17 SECTION 6. (a) An investigation or disciplinary action by
32-18 the Texas Real Estate Commission pending on the effective date of
32-19 this Act shall be continued under Article 6573a.3, Revised
32-20 Statutes, as added by this Act, by the Texas Real Estate Inspector
32-21 Licensing Board. The administration of a disciplinary matter
32-22 conducted under this subsection is to be conducted by the Texas
32-23 Real Estate Inspector Licensing Board.
32-24 (b) A claim against the real estate inspection recovery fund
32-25 pending on the effective date of this Act is governed by the law in
32-26 effect on the date the claim arose, and the former law is continued
32-27 in effect for that purpose.
33-1 SECTION 7. This Act takes effect July 1, 1997.
33-2 SECTION 8. The importance of this legislation and the
33-3 crowded condition of the calendars in both houses create an
33-4 emergency and an imperative public necessity that the
33-5 constitutional rule requiring bills to be read on three several
33-6 days in each house be suspended, and this rule is hereby suspended,
33-7 and that this Act take effect and be in force according to its
33-8 terms, and it is so enacted.