AN ACT
1-1 relating to the continuation and functions of the Texas Commission
1-2 on Fire Protection and the transfer of certain commission functions
1-3 to the state fire marshal and the Texas Department of Insurance.
1-4 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-5 ARTICLE 1. OPERATIONS OF THE COMMISSION
1-6 SECTION 1.01. Section 419.003, Government Code, is amended
1-7 to read as follows:
1-8 Sec. 419.003. SUNSET PROVISION. The Texas Commission on
1-9 Fire Protection is subject to Chapter 325 (Texas Sunset Act).
1-10 Unless continued in existence as provided by that chapter, the
1-11 commission is abolished and this chapter expires September 1, 2009
1-12 [1997].
1-13 SECTION 1.02. Section 419.004, Government Code, is amended
1-14 by amending Subsection (a) and adding Subsection (e) to read as
1-15 follows:
1-16 (a) The commission is composed of the following 12 members:
1-17 (1) two members to be selected from a list of five
1-18 names submitted by the Texas Fire Chiefs Association who are
1-19 [three] chief officers with a minimum rank that is equivalent to
1-20 the position immediately below that of the fire [of battalion]
1-21 chief and who are employed in fire departments as defined by
1-22 Section 419.021 that are under the jurisdiction of the commission,
1-23 at least one [two] of whom must be the head [heads] of a [their]
2-1 fire department [departments,] and one of whom must be employed by
2-2 a political subdivision with a population of less than 50,000[, one
2-3 must be employed by a political subdivision with a population of
2-4 50,000 to 200,000, and one must be employed by a political
2-5 subdivision with a population of more than 200,000];
2-6 (2) two members to be selected from a list of five
2-7 names submitted by the Texas State Association of Fire Fighters who
2-8 are [three] fire protection personnel as defined by Section 419.021
2-9 with the rank of battalion chief [captain] or below and who are
2-10 employed in fire departments or other appropriate local authorities
2-11 under the jurisdiction of the commission, [at least one of whom
2-12 must be actively involved in educating the public on fire
2-13 prevention as a significant part of the person's duties, and] one
2-14 of whom must be employed by a political subdivision with a
2-15 population of less than 50,000[, one must be employed by a
2-16 political subdivision with a population of 50,000 to 200,000, and
2-17 one must be employed by a political subdivision with a population
2-18 of more than 200,000];
2-19 (3) two members to be selected from a list of five
2-20 names submitted by the State Firemen's and Fire Marshals'
2-21 Association of Texas [three persons] who are volunteer fire chiefs
2-22 or volunteer fire fighters;
2-23 (4) one certified fire protection engineer;
2-24 (5) one certified arson investigator or certified fire
2-25 protection inspector; [and]
3-1 (6) one fire protection instructor from an institution
3-2 of higher education as defined by Section 61.003, Education Code;
3-3 and
3-4 (7) three public members.
3-5 (e) A person is not eligible for appointment as a public
3-6 member of the commission if the person or the person's spouse:
3-7 (1) is registered, certified, or licensed by the
3-8 commission;
3-9 (2) is employed by or participates in the management
3-10 of a business entity or other organization regulated by the
3-11 commission or receiving funds from the commission;
3-12 (3) owns or controls, directly or indirectly, more
3-13 than a 10 percent interest in a business entity or other
3-14 organization regulated by the commission or receiving funds from
3-15 the commission;
3-16 (4) uses or receives a substantial amount of tangible
3-17 goods, services, or funds from the commission, other than
3-18 compensation or reimbursement authorized by law for commission
3-19 membership, attendance, or expenses; or
3-20 (5) is a member of a paid or volunteer fire
3-21 department.
3-22 SECTION 1.03. Subsection (c), Section 419.005, Government
3-23 Code, is amended to read as follows:
3-24 (c) If the executive director has knowledge that a potential
3-25 ground for removal exists, the executive director shall notify the
4-1 presiding officer of the commission of the ground. The presiding
4-2 officer shall then notify the governor and the attorney general
4-3 that a potential ground for removal exists. If the potential
4-4 ground for removal involves the presiding officer, the executive
4-5 director shall notify the next highest ranking officer of the
4-6 commission, who shall notify the governor and the attorney general
4-7 that a potential ground for removal exists.
4-8 SECTION 1.04. Subchapter A, Chapter 419, Government Code, is
4-9 amended by adding Section 419.0071 to read as follows:
4-10 Sec. 419.0071. COMMISSION MEMBER TRAINING. (a) To be
4-11 eligible to take office as a member of the commission, a person
4-12 appointed to the commission must complete at least one course of a
4-13 training program that complies with this section.
4-14 (b) The training program must provide information to the
4-15 person regarding:
4-16 (1) the enabling legislation that created the
4-17 commission;
4-18 (2) the programs operated by the commission;
4-19 (3) the role and functions of the commission;
4-20 (4) the rules of the commission with an emphasis on
4-21 the rules that relate to disciplinary and investigatory authority;
4-22 (5) the current budget for the commission;
4-23 (6) the results of the most recent formal audit of the
4-24 commission;
4-25 (7) the requirements of the:
5-1 (A) open meetings law, Chapter 551;
5-2 (B) open records law, Chapter 552; and
5-3 (C) administrative procedure law, Chapter 2001;
5-4 (8) the requirements of the conflict of interests laws
5-5 and other laws relating to public officials; and
5-6 (9) any applicable ethics policies adopted by the
5-7 agency or the Texas Ethics Commission.
5-8 (c) A person appointed to the commission is entitled to
5-9 reimbursement for travel expenses incurred in attending the
5-10 training program, as provided by the General Appropriations Act and
5-11 as if the person were a member of the commission.
5-12 SECTION 1.05. Section 419.008, Government Code, is amended
5-13 to read as follows:
5-14 Sec. 419.008. GENERAL POWERS AND DUTIES. (a) The
5-15 commission may adopt rules for its internal management and control
5-16 and for the administration of its powers and duties.
5-17 (b) The commission shall perform the duties assigned to the
5-18 commission under this chapter or other law.
5-19 (c) The commission shall perform duties assigned by law to
5-20 the Commission on Fire Protection Personnel Standards and Education
5-21 or to the Fire Department Emergency Board.
5-22 (d) [The commission shall provide for the appointment and
5-23 supervision of the state fire marshal in accordance with Chapter
5-24 417.]
5-25 [(e)] The commission may accept gifts, grants, and
6-1 contributions from private individuals or foundations and from the
6-2 federal government.
6-3 (e) [(f)] The commission shall report to the governor
6-4 annually and to the legislature at each regular session on the
6-5 commission's activities. The commission may make recommendations
6-6 in those reports on matters under its jurisdiction. The commission
6-7 may make other reports in its discretion.
6-8 (f) [(g) The commission may make or encourage studies of
6-9 fire protection, including fire administration.]
6-10 [(h) The commission may conduct research to improve fire
6-11 protection and fire administration and may stimulate research by
6-12 public and private agencies for that purpose.]
6-13 [(i) The commission may, on the request of a public or
6-14 nonprofit entity with duties related to fire protection, advise or
6-15 assist the entity in relation to those duties.]
6-16 [(j)] The commission may appoint advisory committees to
6-17 assist it in the performance of its duties. A member of an
6-18 advisory committee appointed by the commission or otherwise
6-19 appointed under this chapter may not receive compensation for
6-20 service on the advisory committee. A member appointed under this
6-21 chapter is entitled to receive reimbursement, subject to any
6-22 applicable limitation on reimbursement provided by the General
6-23 Appropriations Act, for actual and necessary expenses incurred in
6-24 performing services as a member of the advisory committee.
6-25 [(k) The commission may use pertinent and timely facts
7-1 relating to fires to develop educational programs and disseminate
7-2 materials necessary to educate the public effectively regarding
7-3 methods of fire prevention and safety.]
7-4 SECTION 1.06. Subchapter A, Chapter 419, Government Code, is
7-5 amended by adding Section 419.0082 to read as follows:
7-6 Sec. 419.0082. RULEMAKING. (a) In adopting or amending a
7-7 rule under Section 419.008(a) or any other law, the commission
7-8 shall seek the input of the fire fighter advisory committee and,
7-9 when appropriate, the funds allocation advisory committee. The
7-10 commission shall permit the appropriate advisory committee to
7-11 review and comment on any proposed rule, including a proposed
7-12 amendment to a rule, before the rule is adopted.
7-13 (b) The commission may not adopt a rule, including an
7-14 amendment to a rule, before the commission meeting held after the
7-15 commission meeting at which the rule is first proposed.
7-16 (c) This section does not apply to an emergency rule adopted
7-17 under Section 2001.034.
7-18 SECTION 1.07. Subsections (d), (e), (f), and (g), Section
7-19 419.009, Government Code, are amended to read as follows:
7-20 (d) The executive director or the executive director's
7-21 designee shall develop an intraagency career ladder program that
7-22 addresses opportunities for mobility and advancement for employees
7-23 within the commission. The program shall require intraagency
7-24 postings of all [nonentry level] positions concurrently with any
7-25 public posting.
8-1 (e) The executive director or the executive director's
8-2 designee shall develop a system of annual performance evaluations
8-3 that are based on documented employee performance. All merit pay
8-4 for commission employees must be based on the system established
8-5 under this subsection.
8-6 (f) The executive director or the executive director's
8-7 designee shall prepare and maintain a written policy statement to
8-8 assure implementation of a program of equal employment opportunity
8-9 under which all personnel transactions are made without regard to
8-10 race, color, disability [handicap], sex, religion, age, or national
8-11 origin. The policy statement must include:
8-12 (1) personnel policies, including policies relating to
8-13 recruitment, evaluation, selection, appointment, training, and
8-14 promotion of personnel that are in compliance with the requirements
8-15 of Chapter 21, Labor Code;
8-16 (2) a comprehensive analysis of the commission work
8-17 force that meets federal and state laws, rules, regulations, and
8-18 instructions directly adopted under those laws, rules, or
8-19 regulations [guidelines];
8-20 (3) procedures by which a determination can be made
8-21 about the extent of underuse [of significant underutilization] in
8-22 the commission work force of all persons for whom federal or state
8-23 laws, rules, regulations, and instructions directly adopted under
8-24 those laws, rules, or regulations [guidelines] encourage a more
8-25 equitable balance; and
9-1 (4) reasonable methods to appropriately address those
9-2 areas of underuse [significant underutilization].
9-3 (g) A policy statement prepared under Subsection (f) must
9-4 cover an annual period, be updated [at least] annually and reviewed
9-5 by the Commission on Human Rights for compliance with Subsection
9-6 (f)(1), and be filed with the governor's office.
9-7 SECTION 1.08. Subchapter A, Chapter 419, Government Code, is
9-8 amended by adding Section 419.0091 to read as follows:
9-9 Sec. 419.0091. GENERAL COUNSEL. The commission may employ
9-10 not more than one attorney. The attorney shall serve as general
9-11 counsel of the commission.
9-12 SECTION 1.09. Sections 419.010 and 419.011, Government Code,
9-13 are amended to read as follows:
9-14 Sec. 419.010. FISCAL REPORT. The commission shall prepare
9-15 [file] annually [with the governor and the presiding officer of
9-16 each house of the legislature] a complete and detailed written
9-17 report accounting for all funds received and disbursed by the
9-18 commission during the preceding fiscal year. The annual report
9-19 must meet the reporting requirements applicable to financial
9-20 reporting provided in [be in the form and reported in the time
9-21 provided by] the General Appropriations Act.
9-22 Sec. 419.011. PUBLIC INTEREST INFORMATION AND COMPLAINTS.
9-23 (a) The commission shall prepare information of public interest
9-24 describing the functions of the commission and the commission's
9-25 procedures by which complaints are filed with and resolved by the
10-1 commission. The commission shall make the information available to
10-2 the public and appropriate state agencies.
10-3 (b) The commission shall keep a [an information] file about
10-4 each written complaint filed with the commission that the
10-5 commission has authority to resolve. The commission shall provide
10-6 to the person filing the complaint and the persons or entities
10-7 complained about the commission's policies and procedures
10-8 pertaining to complaint investigation and resolution. The [If a
10-9 written complaint is filed with the commission that the commission
10-10 has authority to resolve, the] commission, at least quarterly and
10-11 until final disposition of the complaint, shall notify the person
10-12 filing the complaint and the persons or entities complained about
10-13 [parties to the complaint] of the status of the complaint unless
10-14 the notice would jeopardize an undercover investigation.
10-15 (c) The commission shall keep information about each
10-16 complaint filed with the commission. The information shall
10-17 include:
10-18 (1) the date the complaint is received;
10-19 (2) the name of the complainant;
10-20 (3) the subject matter of the complaint;
10-21 (4) a record of all persons contacted in relation to
10-22 the complaint;
10-23 (5) a summary of the results of the review or
10-24 investigation of the complaint; and
10-25 (6) for complaints for which the agency took no
11-1 action, an explanation of the reason the complaint was closed
11-2 without action.
11-3 (d) The commission shall comply with federal and state laws
11-4 related to program and facility accessibility. The executive
11-5 director [commission] shall also prepare and maintain a written
11-6 plan that describes how a person who does not speak English [or who
11-7 has a physical, mental, or developmental disability] can be
11-8 provided reasonable access to the commission's programs.
11-9 SECTION 1.10. Section 419.053, Government Code, is amended
11-10 to read as follows:
11-11 Sec. 419.053. GENERAL POWERS AND DUTIES OF COMMISSION UNDER
11-12 THIS SUBCHAPTER. (a) The commission shall:
11-13 (1) administer the fire department emergency program
11-14 as provided by this subchapter and commission rules;
11-15 (2) contract with professional experts as necessary to
11-16 assist the commission in carrying out its powers and duties under
11-17 this subchapter;
11-18 (3) adopt rules for the administration of this
11-19 subchapter;
11-20 (4) adopt and use a seal;
11-21 (5) administer oaths and take testimony on matters
11-22 within the commission's jurisdiction under this subchapter;
11-23 (6) keep an accurate record of its meetings, receipts,
11-24 and disbursements;
11-25 (7) submit to the presiding officers of each house of
12-1 the legislature an annual report of the commission's activities
12-2 under this subchapter; and
12-3 (8) consider and approve or disapprove applications
12-4 for scholarships, grants, loans, and other financial assistance as
12-5 provided by this subchapter.
12-6 (b) The rules adopted under Subsection (a)(3) must include
12-7 rules establishing criteria to be used in the evaluation of
12-8 applications for grants and loans with the assistance of staff.
12-9 SECTION 1.11. Subsections (a), (c), and (d), Section
12-10 419.054, Government Code, are amended to read as follows:
12-11 (a) The funds allocation advisory committee is composed of
12-12 six members. Three members are appointed by the State Firemen's
12-13 and Fire Marshals' Association of Texas. Three members are
12-14 appointed by the Texas State Association of Fire Fighters. A
12-15 committee member is subject to removal by the commission [serves at
12-16 the will of the authority that appointed the member]. A vacancy on
12-17 the committee caused by removal of a member by the commission shall
12-18 be filled by the authority that appointed the member who was
12-19 removed.
12-20 (c) The committee shall assist the commission in matters
12-21 relating to the administration of this subchapter. The committee
12-22 periodically shall review commission rules relating to the program
12-23 and recommend changes in the rules to the commission.
12-24 [Notwithstanding Chapter 2001.031, the commission shall submit all
12-25 proposed changes and additions to the rules that relate to the
13-1 program to the committee for development. If the commission does
13-2 not approve a rule developed by the committee, the commission shall
13-3 indicate to the committee the reasons that the commission did not
13-4 approve the rule and return the rule to the committee for further
13-5 development.]
13-6 (d) The committee shall review and evaluate all applications
13-7 for financial assistance under this subchapter according to the
13-8 rules and procedures adopted by the commission. The committee
13-9 shall recommend to the commission which applications should be
13-10 approved and which applications should be disapproved. A complete
13-11 listing of applicants shall be provided to the commission with full
13-12 disclosure of the reasons for approval or disapproval. If the
13-13 commission does not concur with the committee's recommendation, the
13-14 commission shall indicate to the committee the reasons that the
13-15 commission did not concur with the recommendation and return the
13-16 applications regarding which the commission did not concur to the
13-17 committee for further review and evaluation.
13-18 SECTION 1.12. Section 419.063, Government Code, is amended
13-19 to read as follows:
13-20 Sec. 419.063. LIMITATION ON SCHOLARSHIPS, GRANTS, LOANS, AND
13-21 OTHER FINANCIAL ASSISTANCE; USE OF APPROPRIATED FUNDS. (a) The
13-22 commission may not make awards or loans under this subchapter to
13-23 any one applicant in a total amount that is greater than an amount
13-24 equal to five percent of the total amount of money appropriated to
13-25 the program for the fiscal year during which the award or loan is
14-1 made.
14-2 (b) The commission may not approve an application if the
14-3 current appropriations for the program are insufficient to pay the
14-4 total amount requested under the application.
14-5 (c) The commission may not use money appropriated for
14-6 scholarships, grants, loans, and other financial assistance to be
14-7 awarded under this subchapter for the administrative expenses of
14-8 the commission or of the funds allocation advisory committee.
14-9 SECTION 1.13. Section 419.087, Government Code, is amended
14-10 by adding Subsection (f) to read as follows:
14-11 (f) A local government which provided fire protection for
14-12 its citizens utilizing a fire department and fire protection
14-13 personnel as of May 31, 1997, may not thereafter provide fire
14-14 protection by utilizing an organization which is not a local
14-15 government, a department of local government, or a state or federal
14-16 agency and which provides fire protection for the local government
14-17 for profit under a contract or other agreement with the local
14-18 government without approval of a majority of the voters at an
14-19 election called for that purpose.
14-20 SECTION 1.14. Sections 419.902 and 419.903, Government Code,
14-21 are amended to read as follows:
14-22 Sec. 419.902. COORDINATION WITH FIREMEN'S TRAINING SCHOOL.
14-23 The commission and the director of the Texas Engineering Extension
14-24 Service of The Texas A&M University System shall enter into a
14-25 memorandum of understanding to coordinate the responsibilities of
15-1 the commission with the training provided by the firemen's training
15-2 school operated under Section 86.16, Education Code. [The
15-3 commission and the director shall review and update the memorandum
15-4 of understanding not later than the last month of each state fiscal
15-5 year.]
15-6 Sec. 419.903. COORDINATION WITH TEXAS FOREST SERVICE. The
15-7 commission and the director of the Texas Forest Service shall enter
15-8 into a memorandum of understanding to coordinate the provision of
15-9 training assistance and other assistance to fire-fighting entities.
15-10 [The commission and the director shall review and update the
15-11 memorandum of understanding not later than the last month of each
15-12 state fiscal year.]
15-13 SECTION 1.15. Subchapter Z, Chapter 419, Government Code, is
15-14 amended by adding Section 419.907 to read as follows:
15-15 Sec. 419.907. LOCATION OF OFFICES OF COMMISSION, STATE FIRE
15-16 MARSHAL, AND TEXAS FOREST SERVICE. (a) To the extent feasible,
15-17 the commission, the state fire marshal, and the Texas Forest
15-18 Service shall colocate office space outside of Travis County used
15-19 for related functions preformed by the three entities.
15-20 (b) The commission, the commissioner of insurance, and the
15-21 Texas Forest Service may enter into a memorandum of understanding
15-22 to implement this section.
15-23 SECTION 1.16. (a) The terms of the members of the Texas
15-24 Commission on Fire Protection serving on the effective date of this
15-25 Act expire, and that policy-making body as it existed immediately
16-1 before the effective date of this Act is abolished, on the
16-2 effective date of this Act.
16-3 (b) As soon as practicable after the effective date of this
16-4 Act, the governor shall make appointments to the Texas Commission
16-5 on Fire Protection to accomplish the membership plan for the
16-6 commission established by Section 419.004, Government Code, as
16-7 amended by this Act. This section does not prohibit a person who
16-8 is a member of the commission on the effective date of this Act and
16-9 who possesses the qualifications required under Section 419.004,
16-10 Government Code, as amended by this Act, from being reappointed to
16-11 the commission under this subsection.
16-12 (c) In making appointments under this section, the governor
16-13 shall ensure that the staggering of the terms of the members of the
16-14 Texas Commission on Fire Protection is appropriately apportioned as
16-15 required by Section 30a, Article XVI, Texas Constitution.
16-16 ARTICLE 2. CERTIFICATION AND LICENSING
16-17 FUNCTIONS OF THE COMMISSION
16-18 SECTION 2.01. Section 419.021, Government Code, is amended
16-19 to read as follows:
16-20 Sec. 419.021. DEFINITIONS. [(a)] In this subchapter:
16-21 (1) "Aircraft fire fighting and rescue fire protection
16-22 personnel" means permanent, [fully paid,] full-time local
16-23 governmental employees who, as a permanent duty assignment, fight
16-24 aircraft fires at airports, stand by for potential crash landings,
16-25 and perform aircraft crash rescue.
17-1 (2) "Fire department" means a department of a local
17-2 government that is staffed by [with one or more] permanent, [fully
17-3 paid,] full-time employees of the local government and that is
17-4 organized to prevent or suppress fires.
17-5 (3) "Fire protection personnel" means:
17-6 (A) permanent, [fully paid,] full-time law
17-7 enforcement officers designated as fire and arson investigators by
17-8 an appropriate local authority; [or]
17-9 (B) aircraft crash and rescue fire protection
17-10 personnel; or
17-11 (C) permanent, [fully paid,] full-time fire
17-12 department employees who are not secretaries, stenographers,
17-13 clerks, budget analysts, or similar support staff persons or other
17-14 administrative employees and who are assigned duties in one or more
17-15 of the following categories:
17-16 (i) fire suppression;
17-17 (ii) fire inspection;
17-18 (iii) fire and arson investigation;
17-19 (iv) marine fire fighting;
17-20 (v) aircraft crash fire fighting and
17-21 rescue;
17-22 (vi) fire training;
17-23 (vii) fire education;
17-24 (viii) fire administration; and
17-25 (ix) any other position necessarily or
18-1 customarily related to fire prevention and suppression.
18-2 (4) "Local government" means a municipality, a county,
18-3 a special-purpose district or authority, or any other political
18-4 subdivision of the state.
18-5 (5) "Marine fire protection personnel" means
18-6 permanent, [fully paid,] full-time local governmental employees who
18-7 work aboard a fireboat and fight fires that occur on or adjacent to
18-8 a waterway, waterfront, channel, or turning basin.
18-9 (6) "Protective clothing" means garments, including
18-10 turnout coats, bunker coats, bunker pants, boots, gloves, trousers,
18-11 helmets, and protective hoods, worn by fire protection personnel in
18-12 the course of performing fire-fighting operations.
18-13 [(b) In this subchapter, an officer or employee of a fire
18-14 department or other department of a local government is considered
18-15 fully paid if the officer's or employee's annual compensation for
18-16 performing one or more duties listed under Subsection (a)(3)(B),
18-17 including the value of benefits and reimbursement for expenses, is
18-18 at least equal to the amount of compensation a person would receive
18-19 working 2,080 hours at the federal minimum wage.]
18-20 [(c) In this subchapter, an officer or employee of a fire
18-21 department or other department of a local government is considered
18-22 a full-time employee if the officer or employee works an average of
18-23 40 or more hours per week or averages approximately 40 or more
18-24 hours per week during a work cycle, as appropriate, performing one
18-25 or more duties listed under Subsection (a)(3)(B).]
19-1 SECTION 2.02. Subchapter B, Chapter 419, Government Code, is
19-2 amended by adding Section 419.0225 to read as follows:
19-3 Sec. 419.0225. CERTAIN RULES PROHIBITED. (a) The
19-4 commission may not adopt rules restricting competitive bidding or
19-5 advertising by a certificate holder except to prohibit false,
19-6 misleading, or deceptive practices.
19-7 (b) In its rules to prohibit false, misleading, or deceptive
19-8 practices, the commission may not include a rule that:
19-9 (1) restricts the use of any medium for advertising;
19-10 (2) restricts the use of a certificate holder's
19-11 personal appearance or voice in an advertisement;
19-12 (3) relates to the size or duration of an
19-13 advertisement by the certificate holder; or
19-14 (4) restricts the certificate holder's advertisement
19-15 under a trade name.
19-16 SECTION 2.03. Section 419.023, Government Code, is amended
19-17 to read as follows:
19-18 Sec. 419.023. FIRE FIGHTER [PROTECTION PERSONNEL] ADVISORY
19-19 COMMITTEE. (a) The commission shall establish a fire fighter
19-20 [protection personnel] advisory committee to assist the commission
19-21 in matters relating to fire protection personnel, volunteer fire
19-22 fighters, [and] fire departments, and volunteer fire departments.
19-23 The committee shall be composed of nine members appointed by the
19-24 commission.
19-25 (b) Six members of the committee must be fire protection
20-1 personnel or retired fire protection personnel who collectively
20-2 represent various areas in the field of fire protection. Three
20-3 members of the committee must be certified instructors of fire
20-4 protection personnel. At least one member of the committee must be
20-5 a volunteer fire fighter or volunteer fire chief.
20-6 (c) A committee member serves at the will of the commission.
20-7 (d) [(b)] The committee shall elect a member of the
20-8 committee as the presiding officer of the committee. The committee
20-9 shall meet at least twice each calendar year at the call of the
20-10 presiding officer or at the call of the commission.
20-11 (e) [(c)] The committee periodically shall review commission
20-12 rules relating to fire protection personnel, [and] fire
20-13 departments, and other fire fighters and fire fighting
20-14 organizations that are subject to regulation under this subchapter
20-15 and recommend changes in the rules to the commission.
20-16 [Notwithstanding Chapter 2001.031, the commission shall submit all
20-17 proposed changes and additions to the rules that relate to fire
20-18 protection personnel and fire departments to the committee for
20-19 development. If the commission does not approve a rule developed
20-20 by the committee, the commission shall indicate to the committee
20-21 the reasons that the commission did not approve the rule and return
20-22 the rule to the committee for further development.]
20-23 SECTION 2.04. Subsection (e), Section 419.034, Government
20-24 Code, is amended to read as follows:
20-25 (e) Notwithstanding any other law, the commission by rule
21-1 may establish a procedure to waive the late fees or examination
21-2 required by this section if:
21-3 (1) the person's certificate expired because of the
21-4 employing entity's good faith clerical error, including the failure
21-5 of the employing entity to submit fees in a timely manner; or
21-6 (2) the person's certificate expired as a result of
21-7 termination of the person's employment and the person has been
21-8 restored to employment as a result of a disciplinary procedure or a
21-9 court action [Subsection (d), a person may apply for and the
21-10 commission may issue a new certificate without the person's
21-11 retaking the proficiency examination or repeating the requirements
21-12 for obtaining an original certificate if the person previously held
21-13 the certification being sought and:]
21-14 [(1) has continuously held fire protection personnel
21-15 certification in another discipline;]
21-16 [(2) has been employed in a fire protection personnel
21-17 position in another jurisdiction without a break in service of one
21-18 year or longer; or]
21-19 [(3) has been employed full-time, without a break in
21-20 service of one year or longer, by a nongovernmental entity as a
21-21 fire protection employee in circumstances under which the person
21-22 would have been eligible for fire protection personnel
21-23 certification if the person had been employed by a local
21-24 government].
21-25 SECTION 2.05. Subchapter B, Chapter 419, Government Code, is
22-1 amended by adding Section 419.0341 to read as follows:
22-2 Sec. 419.0341. INDIVIDUAL CERTIFICATE HOLDER; CERTIFICATE
22-3 RENEWAL. (a) Notwithstanding any other provision of this
22-4 subchapter, a person may be certified as fire protection personnel
22-5 and continue to hold and renew the certificate without regard to
22-6 whether the person is employed or continues to be employed by a
22-7 local authority or fire department.
22-8 (b) A person who is certified as fire protection personnel
22-9 who is not employed by a local authority or fire department may
22-10 renew an unexpired certificate before the expiration of the
22-11 certificate by:
22-12 (1) submitting evidence satisfactory to the commission
22-13 of completion of any required professional education; and
22-14 (2) paying to the commission the required renewal fee.
22-15 (c) If the person's certificate has been expired for 30 days
22-16 or less, the person may renew the certificate by:
22-17 (1) submitting evidence satisfactory to the commission
22-18 of completion of any required professional education; and
22-19 (2) paying to the commission the required renewal fee
22-20 and a fee that is one-half of the certification fee for the
22-21 certificate.
22-22 (d) If the person's certificate has been expired for longer
22-23 than 30 days but less than one year, the person may renew the
22-24 certificate by:
22-25 (1) submitting evidence satisfactory to the commission
23-1 of completion of any required professional education; and
23-2 (2) paying to the commission all unpaid renewal fees
23-3 and a fee that is equal to the certification fee for the
23-4 certificate.
23-5 (e) If the person's certificate has been expired for one
23-6 year or longer, the person may not renew the certificate. The
23-7 person may obtain a new certificate by submitting to the
23-8 proficiency examination or repeating the requirements and
23-9 procedures for obtaining an original certificate. The commission
23-10 shall charge a fee to cover the cost of administering the
23-11 proficiency examination.
23-12 (f) At least 30 days before the expiration of the
23-13 certificate of a person who is not employed by a local authority or
23-14 fire department, the commission shall send written notice of the
23-15 impending certificate expiration to the last known address of the
23-16 person according to the records of the commission.
23-17 (g) The commission shall establish by rule the procedures
23-18 and requirements for evidence of compliance with this section.
23-19 (h) Notwithstanding any other law, the commission by rule
23-20 may establish a procedure to waive the late fees or examination
23-21 required by this section for a person whose certificate expired
23-22 because of the person's good faith clerical error, including the
23-23 person's failure to submit fees in a timely manner.
23-24 SECTION 2.06. Subchapter B, Chapter 419, Government Code, is
23-25 amended by adding Section 419.0365 to read as follows:
24-1 Sec. 419.0365. DISCIPLINARY HEARING. If the commission
24-2 proposes to suspend, revoke, or refuse to renew a person's
24-3 certificate, the person is entitled to a hearing conducted by the
24-4 State Office of Administrative Hearings. Proceedings for a
24-5 disciplinary action are governed by the administrative procedure
24-6 law, Chapter 2001. Rules of practice adopted by the commission
24-7 under Section 2001.004 applicable to the proceedings for a
24-8 disciplinary action may not conflict with rules adopted by the
24-9 State Office of Administrative Hearings.
24-10 SECTION 2.07. Subchapter D, Chapter 419, Government Code, is
24-11 amended to read as follows:
24-12 SUBCHAPTER D. VOLUNTEER FIRE FIGHTERS AND FIRE DEPARTMENTS
24-13 Sec. 419.071. VOLUNTARY CERTIFICATION PROGRAM FOR VOLUNTEER
24-14 FIRE FIGHTERS AND FIRE DEPARTMENTS. (a) The commission shall
24-15 develop a voluntary certification program for volunteer fire
24-16 fighters and volunteer fire departments. The program must include
24-17 the same components and requirements as the certification program
24-18 established under Subchapter B. The certification program for
24-19 volunteer fire fighters and volunteer fire departments may take
24-20 into account the different circumstances of volunteer fire
24-21 fighters in establishing deadlines for completion of various
24-22 components or requirements of the program.
24-23 (b) A certificate for a given type and level of
24-24 certification that is issued under the certification program
24-25 established under this section is equivalent to a certificate for
25-1 the same type and level issued under Subchapter B. The certificate
25-2 is subject to the same issuance and renewal requirements as a
25-3 certificate issued under Subchapter B, and a certificate holder may
25-4 be disciplined and regulated in the same manner as provided by
25-5 Subchapter B. [Components of the program developed by the
25-6 commission shall include voluntary certification of volunteer fire
25-7 fighters, voluntary certification of facilities that train
25-8 volunteer fire fighters, and voluntary inspection and certification
25-9 of protective clothing and self-contained breathing apparatus of
25-10 volunteer fire departments. A volunteer fire fighter or other
25-11 entity that chooses to become certified under a component of the
25-12 commission's certification program under this subchapter is subject
25-13 to commission rules that relate to that component.]
25-14 [(b) The commission shall contract with a statewide
25-15 organization whose members include both volunteer and paid fire
25-16 fighters to administer and implement the program. The commission
25-17 in the contract shall reserve the right to evaluate the
25-18 administration and implementation of the program under the contract
25-19 and the right to observe and to require information from the other
25-20 party to the contract so that the commission may perform a
25-21 meaningful evaluation.]
25-22 (c) A volunteer fire fighter, volunteer fire department, or
25-23 facility that provides training to volunteer fire fighters is not
25-24 required to participate in any component of the commission's
25-25 program under this chapter. A volunteer fire fighter, volunteer
26-1 fire department, or facility that provides training to volunteer
26-2 fire fighters may on request participate in one or more components
26-3 of the program under this subchapter as appropriate. The volunteer
26-4 fire department with which a volunteer fire fighter is affiliated
26-5 may, but is not required to, pay the certificate fee for a
26-6 volunteer fire fighter certified under this subchapter.
26-7 (d) At least 30 days before the expiration of a volunteer
26-8 fire fighter's certificate, the commission shall send written
26-9 notice of the impending certificate expiration to the last known
26-10 address of the fire fighter according to the records of the
26-11 commission. [The program shall make available to volunteer fire
26-12 fighters the same level of training that is made available to paid
26-13 fire protection personnel and recruits through the commission's
26-14 basic certification program under Subchapter B, but in a way that
26-15 takes into account the circumstances of volunteer fire fighters.]
26-16 [(e) The commission by rule may:]
26-17 [(1) establish qualifications relating to minimum age,
26-18 education, and physical and mental condition required for
26-19 certification under this subchapter;]
26-20 [(2) establish standards relating to training programs
26-21 and to continuing education under this subchapter;]
26-22 [(3) establish the training components required for
26-23 certification under this subchapter;]
26-24 [(4) establish testing procedures for certification
26-25 candidates and procedures to test the satisfactory completion of
27-1 training components; and]
27-2 [(5) recognize other training for credit towards
27-3 certification under this chapter.]
27-4 [(f) Qualifications established for persons under this
27-5 section may only be qualifications for certification and may not be
27-6 qualifications for entering a certification program.]
27-7 Sec. 419.072[. VOLUNTEER FIRE FIGHTER ADVISORY COMMITTEE.
27-8 (a) The commission shall establish a volunteer fire fighter
27-9 advisory committee to assist the commission in matters relating to
27-10 volunteer fire fighters and volunteer fire departments. The
27-11 committee shall be composed of nine members appointed by the
27-12 commission. Six members must be volunteer fire fighters who
27-13 collectively represent various areas in the field of fire
27-14 protection. Three members must be instructors of volunteer fire
27-15 fighters. Six of the nine members must be appointed from a list
27-16 submitted each year before September 1 to the commission by the
27-17 State Firemen's and Fire Marshals' Association of Texas. A
27-18 committee member:]
27-19 [(1) serves at the will of the commission;]
27-20 [(2) serves for a one-year term that expires February
27-21 1; and]
27-22 [(3) may be reappointed to the committee after the
27-23 expiration of a term.]
27-24 [(b) The committee shall elect a member of the committee as
27-25 presiding officer of the committee. The committee shall meet at
28-1 least twice each calendar year at the call of the presiding officer
28-2 or at the call of the commission.]
28-3 [(c) The committee shall develop and recommend to the
28-4 commission for approval the rules of the program under this
28-5 subchapter. The committee periodically shall review commission
28-6 rules relating to the commission's program under this subchapter
28-7 and recommend changes in the rules to the commission.
28-8 Notwithstanding Chapter 2001.031, the commission shall submit all
28-9 proposed rules and all proposed changes and additions to the rules
28-10 that relate to the program under this subchapter to the committee
28-11 for development. If the commission does not approve a rule
28-12 developed by the committee, the commission shall indicate to the
28-13 committee the reasons that the commission did not approve the rule
28-14 and return the rule to the committee for further development.]
28-15 [Sec. 419.073. CERTIFICATION FEE. The commission shall set
28-16 and collect a fee of not more than $10 for each certificate issued
28-17 under this subchapter designed to recover the commission's costs
28-18 under this subchapter. The commission may choose to pay the fee
28-19 out of money appropriated for the implementation of Subchapter C.]
28-20 [Sec. 419.074. RECOGNITION OF CERTAIN PRIOR CERTIFICATIONS.
28-21 (a) The commission shall, on application, certify a person under
28-22 the commission's program under this subchapter if the person
28-23 received an advanced certificate from the State Firemen's and Fire
28-24 Marshals' Association of Texas before September 1, 1993.]
28-25 [(b) A volunteer fire fighter who receives an advanced
29-1 certificate from the State Firemen's and Fire Marshals' Association
29-2 of Texas after September 1, 1993, shall on application be certified
29-3 under this subchapter:]
29-4 [(1) if the commission determines that the standards
29-5 under which the volunteer fire fighter received the advanced
29-6 certificate are at least as stringent as the applicable standards
29-7 in effect for that certificate on January 1, 1993; and]
29-8 [(2) after the successful completion of an examination
29-9 administered by the commission for the purpose of certification
29-10 under this subchapter.]
29-11 [Sec. 419.075]. OBTAINING PAID EMPLOYMENT AS FIRE FIGHTER
29-12 [BECOMING CERTIFIED UNDER SUBCHAPTER B]. (a) Notwithstanding
29-13 anything to the contrary in Subchapter B, a fire department may
29-14 appoint as fire protection personnel a [A] volunteer fire fighter
29-15 or former volunteer fire fighter who is certified by the commission
29-16 under this subchapter. On receiving the appointment from the
29-17 employing fire department, the person is considered to be certified
29-18 fire protection personnel [is eligible to be certified to be fire
29-19 protection personnel under Subchapter B if the person successfully
29-20 completes the fire protection personnel examination administered
29-21 under Subchapter B on the first or second attempt. A volunteer
29-22 fire fighter who is certified by the commission under this
29-23 subchapter and who does not successfully complete the fire
29-24 protection personnel examination administered under Subchapter B on
29-25 the first or second attempt is eligible to be certified to be fire
30-1 protection personnel under Subchapter B only after completing a
30-2 commission-approved certification program under Subchapter B and
30-3 subsequent successful completion of the fire protection personnel
30-4 examination administered under Subchapter B].
30-5 (b) In this section, "fire department" has the meaning
30-6 assigned by Section 419.021.
30-7 Sec. 419.073. INDIVIDUAL CERTIFICATE HOLDER; CERTIFICATE
30-8 RENEWAL. (a) A volunteer fire fighter certified under this
30-9 subchapter may continue to hold and renew the certificate without
30-10 regard to whether the person continues to be affiliated with a
30-11 volunteer fire department.
30-12 (b) A former volunteer fire fighter who is no longer
30-13 affiliated with a volunteer fire department may renew an unexpired
30-14 certificate before the expiration of the certificate by:
30-15 (1) submitting evidence satisfactory to the commission
30-16 of completion of any required professional education; and
30-17 (2) paying to the commission the required renewal fee.
30-18 (c) If a person's certificate has been expired for 30 days
30-19 or less, the person may renew the certificate by:
30-20 (1) submitting evidence satisfactory to the commission
30-21 of completion of any required professional education; and
30-22 (2) paying to the commission the required renewal fee
30-23 and a fee that is one-half of the certification fee for the
30-24 certificate.
30-25 (d) If a person's certificate has been expired for longer
31-1 than 30 days but less than one year, the person may renew the
31-2 certificate by:
31-3 (1) submitting evidence satisfactory to the commission
31-4 of completion of any required professional education; and
31-5 (2) paying to the commission all unpaid renewal fees
31-6 and a fee that is equal to the certification fee.
31-7 (e) If a person's certificate has been expired for one year
31-8 or longer, the person may not renew the certificate.
31-9 (f) The commission shall establish by rule the requirements
31-10 evidence must meet to be considered satisfactory for the purpose of
31-11 complying with this section.
31-12 (g) Notwithstanding any other law, the commission may by
31-13 rule establish a procedure to recertify a person if:
31-14 (1) the person's certification has lapsed because of
31-15 the person's good faith clerical error, including the person's
31-16 failure to submit fees in a timely manner; or
31-17 (2) the person's certification has lapsed as a result
31-18 of termination of the person's employment and the person has been
31-19 restored to employment as a result of a disciplinary procedure.
31-20 SECTION 2.08. Subchapter F, Chapter 411, Government Code, is
31-21 amended by adding Section 411.1236 to read as follows:
31-22 Sec. 411.1236. ACCESS TO CRIMINAL HISTORY RECORD
31-23 INFORMATION: TEXAS COMMISSION ON FIRE PROTECTION. (a) This
31-24 section applies only to a circumstance in which:
31-25 (1) the Texas Commission on Fire Protection:
32-1 (A) issues or renews to an individual a license,
32-2 permit, certificate, or other similar authorization; and
32-3 (B) is authorized or required by law to obtain
32-4 criminal history record information relating to the individual; and
32-5 (2) another person, including a state agency or local
32-6 government:
32-7 (A) is authorized or required to obtain the same
32-8 information; and
32-9 (B) did obtain that information not earlier than
32-10 the 90th day before the date on which the individual makes an
32-11 application to the Texas Commission on Fire Protection for issuance
32-12 or renewal of the license, permit, certificate, or other similar
32-13 authorization.
32-14 (b) In a circumstance described by Subsection (a), the Texas
32-15 Commission on Fire Protection shall obtain criminal history record
32-16 information from the person who has obtained the required
32-17 information as described by Subsection (a)(2). On request from the
32-18 Texas Commission on Fire Protection under this section, the person
32-19 shall provide the information to the Texas Commission on Fire
32-20 Protection.
32-21 (c) Notwithstanding any other law or rule, the Texas
32-22 Commission on Fire Protection may disclose to the following persons
32-23 the fact that issuance or renewal of a license, permit,
32-24 certificate, or similar authorization was denied because of
32-25 criminal history record information:
33-1 (1) the individual who applied for the license,
33-2 permit, certificate, or similar authorization; and
33-3 (2) if the individual is requesting certification
33-4 under Subchapter B or D, Chapter 419, the local authority, fire
33-5 department, or volunteer fire department for which the fire
33-6 protection personnel or volunteer fire fighter would provide
33-7 services.
33-8 (d) The Texas Commission on Fire Protection may not disclose
33-9 the content of the criminal history record information under
33-10 Subsection (c)(2).
33-11 SECTION 2.09. The heading of Subchapter B, Chapter 419,
33-12 Government Code, is amended to read as follows:
33-13 SUBCHAPTER B. REGULATING AND ASSISTING FIRE FIGHTERS AND
33-14 [FULLY PAID LOCAL FIRE PROTECTION PERSONNEL AND LOCAL]
33-15 FIRE DEPARTMENTS
33-16 SECTION 2.10. The fire protection personnel advisory
33-17 committee is abolished. As soon as possible on or after the
33-18 effective date of this Act, the Texas Commission on Fire Protection
33-19 shall establish and make appointments to the fire fighter advisory
33-20 committee under Section 419.023, Government Code, as amended by
33-21 this Act.
33-22 SECTION 2.11. The volunteer fire fighter advisory committee
33-23 established under Section 419.072, Government Code, is abolished.
33-24 SECTION 2.12. The change in law made by Section 419.0365,
33-25 Government Code, as added by this Act, applies only to a
34-1 disciplinary proceeding commenced on or after the effective date of
34-2 this Act. A disciplinary proceeding commenced before the effective
34-3 date of this Act is governed by the law in effect immediately
34-4 before the effective date of this Act, and that law is continued in
34-5 effect for this purpose.
34-6 ARTICLE 3. THE STATE FIRE MARSHAL
34-7 SECTION 3.01. Sections 417.001, 417.002, 417.003, 417.004,
34-8 417.005, and 417.0051, Government Code, are amended to read as
34-9 follows:
34-10 Sec. 417.001. DEFINITIONS [DEFINITION]. In this chapter:
34-11 (1) "Commissioner" means the commissioner of
34-12 insurance.
34-13 (2) "Department" means the Texas Department of
34-14 Insurance[, "commission" means the Texas Commission on Fire
34-15 Protection].
34-16 Sec. 417.002. APPOINTMENT AND TENURE. The state fire
34-17 marshal is appointed by the commissioner [executive director of the
34-18 commission subject to approval by the commission]. The state fire
34-19 marshal serves at the pleasure of the commissioner [commission] and
34-20 may be discharged at any time. The [commission shall require the]
34-21 state fire marshal shall [to] report to the commissioner
34-22 [commission through the executive director].
34-23 Sec. 417.003. STATUS AS STATE-COMMISSIONED OFFICER. The
34-24 state fire marshal is a state-commissioned officer and functions in
34-25 that capacity subject to rules of the commissioner [commission].
35-1 Sec. 417.004. GENERAL POWERS AND DUTIES. (a) The state
35-2 fire marshal, under the supervision of the commissioner
35-3 [commission], shall administer and enforce applicable provisions of
35-4 the Insurance Code and other law relating to the state fire
35-5 marshal. The commissioner [commission] shall perform the
35-6 supervisory and rule-making functions previously performed by the
35-7 Texas Commission on Fire Protection [State Board of Insurance]
35-8 under this subsection. The commissioner and the commission [and
35-9 the board] shall transfer information between the two agencies as
35-10 necessary to allow the agencies to perform their statutory duties.
35-11 The commissioner and the commission [and the board] may make and
35-12 adopt by rule memoranda of understanding as necessary to coordinate
35-13 their respective duties.
35-14 (b) The state fire marshal is the chief investigator in
35-15 charge of the investigation of arson and suspected arson in the
35-16 state.
35-17 (c) The state fire marshal may make or encourage studies of
35-18 fire protection, including fire administration.
35-19 (d) The state fire marshal may conduct research to improve
35-20 fire protection and fire administration and may stimulate research
35-21 by public and private agencies for that purpose.
35-22 (e) The state fire marshal may, on the request of a public
35-23 or nonprofit entity with duties related to fire protection, advise
35-24 or assist the entity in relation to those duties.
35-25 Sec. 417.005. ADOPTION OF RULES. The commissioner
36-1 [commission], after consulting with the state fire marshal, may
36-2 adopt necessary rules to guide the state fire marshal and fire and
36-3 arson investigators commissioned by the state fire marshal in the
36-4 investigation of arson, fire, and suspected arson and in the
36-5 performance of other duties for the commissioner [commission].
36-6 Sec. 417.0051. FIRE PREVENTION AND SAFETY EDUCATION. The
36-7 commissioner [commission], through the state fire marshal, may use
36-8 pertinent and timely facts relating to fires to develop educational
36-9 programs and disseminate materials necessary to educate the public
36-10 effectively regarding methods of fire prevention and safety.
36-11 SECTION 3.02. Chapter 417, Government Code, is amended by
36-12 adding Section 417.0052 to read as follows:
36-13 Sec. 417.0052. TEXAS FIRE INCIDENT REPORTING SYSTEM. The
36-14 state fire marshal, under the direction of the commissioner, is
36-15 responsible for maintaining and administering the Texas Fire
36-16 Incident Reporting System.
36-17 SECTION 3.03. Section 417.006, Government Code, is amended
36-18 to read as follows:
36-19 Sec. 417.006. FIRE AND ARSON INVESTIGATORS. The state fire
36-20 marshal may commission peace officers to act as fire and arson
36-21 investigators under his supervision and to perform other law
36-22 enforcement duties assigned to the commissioner and the state fire
36-23 marshal [commission] by law. The state fire marshal may revoke a
36-24 peace officer's commission under this section for just cause.
36-25 SECTION 3.04. Subsections (a) and (c), Section 417.007,
37-1 Government Code, are amended to read as follows:
37-2 (a) The state fire marshal shall immediately investigate a
37-3 fire occurring in this state in which property is destroyed if the
37-4 commissioner [commission] directs the investigation or, in the
37-5 discretion of the commissioner [commission], if the investigation
37-6 is requested by:
37-7 (1) the mayor, fire chief, fire marshal, or police
37-8 chief of a municipality in which a fire occurs;
37-9 (2) a county or district judge, sheriff, county fire
37-10 marshal, chief or fire marshal of a fire department in an
37-11 unincorporated area, or county attorney of a county in which a fire
37-12 occurs;
37-13 (3) a fire insurance company interested in a loss or
37-14 the company's general, state, or special agent;
37-15 (4) an insurance policyholder, property owner, or
37-16 lessee sustaining a fire loss;
37-17 (5) a justice of the peace or a constable of a
37-18 precinct in which a fire occurs; or
37-19 (6) officials of a state or federal law enforcement
37-20 agency or local or special governmental district involved or
37-21 interested in a fire loss that occurred in this state.
37-22 (c) The state fire marshal shall conduct the investigation
37-23 at the place of the fire and before an insured loss may be paid.
37-24 The state fire marshal shall ascertain, if possible, whether the
37-25 fire was caused intentionally, carelessly, or accidentally. The
38-1 state fire marshal shall make a written report of the investigation
38-2 to the commissioner [commission].
38-3 SECTION 3.05. Subsection (e), Section 417.008, Government
38-4 Code, is amended to read as follows:
38-5 (e) The commissioner [commission] may adopt by rule any
38-6 appropriate standard developed by a nationally recognized
38-7 standards-making association under which the state fire marshal may
38-8 enforce this section, except that standards adopted by rule under
38-9 this subsection do not apply in a geographic area under the
38-10 jurisdiction of a local government that has adopted fire protection
38-11 ordinances that apply in the geographic area.
38-12 SECTION 3.06. Section 417.0081, Government Code, is amended
38-13 to read as follows:
38-14 Sec. 417.0081. INSPECTION OF CERTAIN STATE-OWNED BUILDINGS.
38-15 The state fire marshal, at the commissioner's [commission's]
38-16 direction, shall periodically inspect public buildings under the
38-17 charge and control of the General Services Commission [and shall
38-18 take any action authorized by the commission to protect the
38-19 buildings and their occupants from an existing or threatened fire
38-20 hazard].
38-21 SECTION 3.07. Section 419.0081, Government Code, is
38-22 transferred to Chapter 417, Government Code, renumbered as Section
38-23 417.0082, and amended to read as follows:
38-24 Sec. 417.0082 [419.0081]. PROTECTION OF CERTAIN STATE-OWNED
38-25 BUILDINGS AGAINST FIRE HAZARDS. (a) The state fire marshal, under
39-1 the direction of the commissioner, [commission] shall take any
39-2 action necessary to protect a public building under the charge and
39-3 control of the General Services Commission, and the building's
39-4 occupants, against an existing or threatened fire hazard.
39-5 (b) The commissioner [commission] and the General Services
39-6 Commission shall make and each adopt by rule a memorandum of
39-7 understanding that coordinates the agency's duties under this
39-8 section.
39-9 SECTION 3.08. Section 419.901, Government Code, is
39-10 transferred to Chapter 417, Government Code, renumbered as Section
39-11 417.0083, and amended to read as follows:
39-12 Sec. 417.0083 [419.901]. FIRE SUPPRESSION RATINGS [KEY RATE]
39-13 SCHEDULE. (a) [The commission shall review the key rate schedule
39-14 of the State Board of Insurance at least once every four years.
39-15 The commission shall recommend changes that the commission believes
39-16 should be made in the schedule to the board.]
39-17 [(b) The commission shall inspect municipalities, using the
39-18 key rate schedule, recommend the key rate to the State Board of
39-19 Insurance for its approval, and report information obtained as a
39-20 result of the inspection to the board. If the board does not
39-21 approve a rate recommended by the commission, the board shall
39-22 inform the commission of the reason and the commission shall
39-23 recommend another rate.]
39-24 [(c)] The state fire marshal shall perform duties as
39-25 directed by the commissioner [commission and the State Board of
40-1 Insurance shall adopt a memorandum of understanding that
40-2 coordinates their respective duties] relating to the department's
40-3 fire suppression ratings [key rate] schedule.
40-4 (b) The state fire marshal may provide technical assistance
40-5 to paid fire departments, volunteer fire departments, and local
40-6 governments responding to the use of the fire suppression ratings
40-7 schedule.
40-8 SECTION 3.09. Subsection (b), Section 417.009, Government
40-9 Code, is amended to read as follows:
40-10 (b) The designated person has the same authority with
40-11 respect to the investigation as is provided by this chapter for the
40-12 state fire marshal. The designated person is entitled to
40-13 compensation as provided by the commissioner [action of the
40-14 commission].
40-15 SECTION 3.10. Section 417.010, Government Code, is amended
40-16 to read as follows:
40-17 Sec. 417.010. ALTERNATE REMEDIES. The state fire marshal,
40-18 in the enforcement of a law that is enforced by or through the
40-19 state fire marshal, may in lieu of cancelling, revoking, or
40-20 suspending a license or certificate of registration impose on the
40-21 holder of the license or certificate of registration an order
40-22 directing the holder to do one or more of the following:
40-23 (1) cease and desist from a specified activity;
40-24 (2) remit to the commissioner [commission] within a
40-25 specified time a monetary forfeiture not to exceed $10,000 for each
41-1 violation of an applicable law or rule; and
41-2 (3) make restitution to a person harmed by the
41-3 holder's violation of an applicable law or rule.
41-4 SECTION 3.11. Section 417.0041, Government Code, is
41-5 repealed.
41-6 ARTICLE 4. FUNCTIONS OF THE TEXAS DEPARTMENT OF INSURANCE
41-7 SECTION 4.01. Subsection (b), Section 7, Article 5.43-1,
41-8 Insurance Code, is amended to read as follows:
41-9 (b) The commissioner, through the State Fire Marshal, may
41-10 suspend, revoke, or refuse to issue or renew a license, apprentice
41-11 permit, hydrostatic testing certificate, certificate of
41-12 registration, or approval of a testing laboratory in accordance
41-13 with Section 13 of this article [State Board of Insurance may
41-14 through the State Fire Marshal conduct hearings or proceedings
41-15 concerning the suspension, revocation, or refusal of the issuance
41-16 or renewal of licenses, apprentice permits, hydrostatic testing
41-17 certificates, certificates of registration, or approvals of testing
41-18 laboratories issued under this article or the application to
41-19 suspend, revoke, refuse to renew, or refuse to issue the same].
41-20 SECTION 4.02. Article 5.43-1, Insurance Code, is amended by
41-21 adding Section 8A to read as follows:
41-22 Sec. 8A. CERTAIN RULES PROHIBITED. (a) The commissioner
41-23 may not adopt rules restricting competitive bidding or advertising
41-24 by the holder of a license, permit, certificate, or approval issued
41-25 under this article except to prohibit false, misleading, or
42-1 deceptive practices.
42-2 (b) In the commissioner's rules to prohibit false,
42-3 misleading, or deceptive practices, the commissioner may not
42-4 include a rule that:
42-5 (1) restricts the use of any medium for advertising;
42-6 (2) restricts the use of a license, permit,
42-7 certificate, or approval holder's personal appearance or voice in
42-8 an advertisement;
42-9 (3) relates to the size or duration of an
42-10 advertisement by the license, permit, certificate, or approval
42-11 holder; or
42-12 (4) restricts the license, permit, certificate, or
42-13 approval holder's advertisement under a trade name.
42-14 SECTION 4.03. Section 9, Article 5.43-1, Insurance Code, is
42-15 amended to read as follows:
42-16 Sec. 9. FIRE EXTINGUISHER ADVISORY COUNCIL [DELEGATION OF
42-17 POWER BY STATE BOARD OF INSURANCE]. (a) The commissioner [State
42-18 Board of Insurance] may delegate the exercise of all or part of the
42-19 commissioner's [its] functions, powers, and duties under this
42-20 article, except for the issuance of licenses, certificates, and
42-21 permits, to a Fire Extinguisher Advisory Council whose members
42-22 shall be appointed by the commissioner [State Board of Insurance].
42-23 The council shall assist in the review and formulation of rules
42-24 adopted under this article and shall periodically review rules
42-25 implementing this article and recommend changes in the rules to the
43-1 commissioner [in accordance with Section 417.0041, Government
43-2 Code].
43-3 (b) The members of the council shall be experienced and
43-4 knowledgeable in one or more of the following areas: fire
43-5 services, fire extinguisher manufacturing, fire insurance
43-6 inspection or underwriting, fire extinguisher servicing, or be a
43-7 member of a fire protection association or industrial safety
43-8 association.
43-9 SECTION 4.04. Article 5.43-1, Insurance Code, is amended by
43-10 adding Section 13 to read as follows:
43-11 Sec. 13. DISCIPLINARY HEARING. If the State Fire Marshal
43-12 proposes to suspend, revoke, or refuse to renew a license, permit,
43-13 certificate, or approval issued under this article, the holder of
43-14 the license, permit, certificate, or approval is entitled to a
43-15 hearing conducted by the State Office of Administrative Hearings.
43-16 Proceedings for a disciplinary action are governed by the
43-17 administrative procedure law, Chapter 2001, Government Code. Rules
43-18 of practice adopted by the commissioner applicable to the
43-19 proceedings for a disciplinary action may not conflict with rules
43-20 adopted by the State Office of Administrative Hearings.
43-21 SECTION 4.05. Section 1, Article 5.43-2, Insurance Code, is
43-22 amended to read as follows:
43-23 Sec. 1. PURPOSE. The purpose of this article is to regulate
43-24 the planning, certifying, leasing, selling, servicing, installing,
43-25 monitoring, and maintaining of fire detection and fire alarm
44-1 devices and systems and, except as provided by rules adopted under
44-2 Section 6 of this article, to prohibit fire detection and fire
44-3 alarm devices, [and] equipment, and systems not labeled or listed
44-4 by a nationally recognized testing laboratory [approved by the
44-5 State Board of Insurance], in the interest of safeguarding lives
44-6 and property.
44-7 SECTION 4.06. Subsections (a), (b), and (f), Section 5,
44-8 Article 5.43-2, Insurance Code, are amended to read as follows:
44-9 (a) Each person or organization engaged in the business of
44-10 planning, certifying, leasing, selling, servicing, installing,
44-11 monitoring, or maintaining fire alarm or fire detection devices or
44-12 systems shall have a certificate of registration issued by the
44-13 commissioner [board]. The initial fee for the certificate of
44-14 registration must be in an amount not to exceed $500 and the
44-15 renewal fee for each year thereafter must be in an amount not to
44-16 exceed $500. The renewal fee for a person or organization engaged
44-17 in the business of planning, certifying, leasing, selling,
44-18 servicing, installing, monitoring, or maintaining exclusively
44-19 single station devices shall be in an amount not to exceed $250. A
44-20 registered person or firm shall retain at least one fire alarm
44-21 technician, residential fire alarm superintendent or fire alarm
44-22 planning superintendent as an employee. A registered person or
44-23 firm that is engaged in the business of planning, certifying,
44-24 leasing, selling, servicing, installing, monitoring, or maintaining
44-25 exclusively single station devices shall have at least one fire
45-1 alarm technician, residential fire alarm superintendent, or fire
45-2 alarm planning superintendent. A limited certificate of
45-3 registration may be issued to persons or organizations whose
45-4 business is restricted to monitoring.
45-5 (b) Each separate office location of a registered firm,
45-6 other than the location identified on the certificate of
45-7 registration, shall have a branch office registration certificate
45-8 issued by the commissioner [board]. The initial fee for this
45-9 branch office registration certificate must be in an amount not to
45-10 exceed $150 and the renewal fee for each year thereafter must be in
45-11 an amount not to exceed $150. The commissioner [board] shall
45-12 identify each branch office location as a part of a registered
45-13 organization before a branch office registration certificate may be
45-14 issued. A registered person or firm that is engaged in the
45-15 business of planning, certifying, leasing, selling, servicing,
45-16 installing, monitoring, or maintaining exclusively single station
45-17 devices shall not be required to apply for or obtain a branch
45-18 office registration certificate for a separate office or location
45-19 of the registered firm.
45-20 (f) A person licensed pursuant to this article shall be an
45-21 employee or agent of an organization that holds a valid certificate
45-22 of registration in order to engage in the activity for which the
45-23 license was granted.
45-24 SECTION 4.07. Subsection (a), Section 5C, Article 5.43-2,
45-25 Insurance Code, is amended to read as follows:
46-1 (a) An unexpired license or registration may be renewed by
46-2 paying the required renewal fee to the board before the expiration
46-3 of the license or registration. If a license or registration has
46-4 been expired for not longer than 90 days, the license or
46-5 registration may be renewed by paying to the board the required
46-6 renewal fee and a fee that is not to exceed one-fourth of the
46-7 original fee for the license or registration. If a license or
46-8 registration has been expired for longer than 90 days but less than
46-9 two years, the license or registration may be renewed by paying to
46-10 the board all unpaid renewal fees and a fee that is not to exceed
46-11 the original fee for the license or registration. If a license or
46-12 registration has been expired for two years or longer, the license
46-13 or registration may not be renewed. A new license or registration
46-14 may be obtained by complying with the requirements and procedures
46-15 for obtaining an original license or registration. At least 30
46-16 days before the expiration of a license or registration, the State
46-17 Fire Marshal shall send written notice of the impending license or
46-18 registration expiration to the licensee or registrant at his or its
46-19 last known address. This section may not be construed to prevent
46-20 the board from denying or refusing to renew a license under
46-21 applicable law or rules of the State Board of Insurance. A
46-22 licensee with an unexpired license who is not employed by a
46-23 registered firm at the time of the licensee's renewal may renew
46-24 that license; however, the licensee may not engage in any activity
46-25 for which the license was granted until the licensee is employed
47-1 and qualified under a registered firm.
47-2 SECTION 4.08. Section 5D, Article 5.43-2, Insurance Code, is
47-3 amended to read as follows:
47-4 Sec. 5D. Examination. (a) Each applicant for a license
47-5 must pass a written examination. Examinations shall be conducted
47-6 by the State Fire Marshal. Examinations shall cover this article
47-7 and board rules and shall include specific testing of all
47-8 categories of licensure. Not later than the 30th day after the day
47-9 on which an examination is administered under this article, the
47-10 State Fire Marshal shall send notice to each examinee of the
47-11 results of the examination. If an examination is conducted,
47-12 graded, or reviewed by a testing service, the State Fire Marshal
47-13 shall send notice to the examinees of the results of the
47-14 examination within two weeks after the date on which the State Fire
47-15 Marshal receives the results from the testing service. If the
47-16 notice of the examination results will be delayed for longer than
47-17 90 days after the examination date, the State Fire Marshal shall
47-18 send notice to the examinee of the reason for the delay before the
47-19 90th day. If requested in writing by a person who fails the
47-20 examination administered under this article, the State Fire Marshal
47-21 shall send to the person an analysis of the person's performance on
47-22 the examination.
47-23 (b) A training school shall make an application for approval
47-24 to the State Fire Marshal. Applications shall include complete
47-25 course or testing curriculum. The State Fire Marshal shall review
48-1 the materials for course approval and shall provide a letter of
48-2 course approval or a letter of denial within 60 days. Denials of
48-3 approval shall be in writing and shall disclose specific reasons
48-4 for the denial. Denied applicants may reapply at any time.
48-5 Approval for a training school or testing service shall be valid
48-6 for one year, and the initial and renewal fee for a training school
48-7 approval shall not exceed $500. A registered firm, or an affiliate
48-8 of a registered firm, shall not be approved as a training school.
48-9 (c) Instructors for training schools shall be approved by
48-10 the State Fire Marshal. Instructors must have a minimum of three
48-11 years of experience in fire alarm installation, service, or
48-12 monitoring and shall have a valid fire alarm planning
48-13 superintendent license. An instructor's approval shall be
48-14 effective for one year, and the initial or renewal fee for approval
48-15 of an instructor shall not exceed $50.
48-16 (d) The training curriculum for a fire alarm technician and
48-17 a residential fire alarm superintendent course shall consist of 16
48-18 hours of classroom instruction on all categories of licensure.
48-19 (e) Training schools must conduct two or more classes, open
48-20 to the public, each calendar year from the issuance of
48-21 registration, within 125 miles of each county in the state that has
48-22 a population in excess of 500,000 people according to the last
48-23 decennial census.
48-24 SECTION 4.09. Section 6, Article 5.43-2, Insurance Code, is
48-25 amended to read as follows:
49-1 Sec. 6. POWERS AND DUTIES OF THE COMMISSIONER [STATE BOARD
49-2 OF INSURANCE]. (a) The commissioner may adopt rules as necessary
49-3 to administer this article. The rules may establish specialized
49-4 licenses and certificates of registration for organizations or
49-5 persons engaged in the business of planning, certifying, leasing,
49-6 selling, servicing, installing, monitoring, or maintaining fire
49-7 alarm or fire detection devices or systems. The rules shall
49-8 establish appropriate training and qualification standards for each
49-9 kind of license and certificate of registration [board shall
49-10 delegate authority to exercise all or part of its functions,
49-11 powers, and duties under this article, including the issuance of
49-12 certificates and licenses, to the state fire marshal, and the state
49-13 fire marshal along with assistance of an advisory council to be
49-14 appointed by the board shall implement such rules as may be
49-15 determined by the board in accordance with Section 417.0041,
49-16 Government Code to be essentially necessary for the protection and
49-17 preservation of life and property in controlling:]
49-18 [(1) the registration of persons and organizations
49-19 engaging in the business of planning, certifying, leasing, selling,
49-20 servicing, installing, monitoring, or maintaining fire alarm or
49-21 fire detection devices or systems; and]
49-22 [(2) the requirements for the planning, certifying,
49-23 leasing, selling, servicing, installing, monitoring, or maintaining
49-24 of fire alarm or fire detection devices or systems by:]
49-25 [(A) conducting examinations and evaluating the
50-1 qualifications of applicants for a certificate of registration to
50-2 engage in the business of planning, certifying, leasing, selling,
50-3 servicing, installing, monitoring, or maintaining fire alarm or
50-4 fire detection devices or systems;]
50-5 [(B) conducting examinations and evaluating the
50-6 qualifications of applicants for fire alarm technician, residential
50-7 fire alarm superintendent, or fire alarm planning superintendent
50-8 licenses;]
50-9 [(C) evaluating and determining which
50-10 organizations shall be approved as testing laboratories for the
50-11 purpose of this article; and]
50-12 [(D) evaluating and approving required training
50-13 programs for all persons who engage in the business of planning,
50-14 certifying, leasing, selling, servicing, installing, monitoring, or
50-15 maintaining fire alarm or fire detection devices or systems].
50-16 (b) The commissioner shall also adopt standards applicable
50-17 to any fire alarm device, equipment, or system regulated under this
50-18 article. In adopting standards under this subsection, the
50-19 commissioner may permit the operation of a fire alarm monitoring
50-20 station that relies on fire alarm devices or equipment that is
50-21 approved or listed by a nationally recognized testing laboratory,
50-22 without regard to whether the monitoring station is approved or
50-23 listed by a nationally recognized testing laboratory as long as the
50-24 operator of the station demonstrates that its operating standards
50-25 are substantially equivalent to those required in order to be
51-1 approved or listed [board may, after notice and opportunity for
51-2 hearing, increase or decrease the limits of insurance coverage].
51-3 (c) An advisory council appointed in accordance with
51-4 Subsection (d) of this section shall periodically review rules
51-5 implementing this article and recommend changes in the rules to the
51-6 commissioner.
51-7 (d) The advisory council is appointed by the commissioner
51-8 and is composed of seven individuals as follows:
51-9 (1) three individuals employed by any registered firm
51-10 in the fire protection industry who have a minimum of three years
51-11 experience in the sale, installation, maintenance, or manufacturing
51-12 of fire alarm or fire detection devices;
51-13 (2) two individuals who must either be experienced in
51-14 the engineering of fire prevention services or be a member of a
51-15 fire protection association;
51-16 (3) one person experienced and employed by a
51-17 municipality or county as a fire prevention officer; and
51-18 (4) one person who is employed by any registered firm
51-19 and who has at least three years experience in the operation of a
51-20 central fire alarm monitoring station.
51-21 SECTION 4.10. Article 5.43-2, Insurance Code, is amended by
51-22 adding Sections 6A and 10A to read as follows:
51-23 Sec. 6A. CERTAIN RULES PROHIBITED. (a) The commissioner
51-24 may not adopt rules restricting competitive bidding or advertising
51-25 by the holder of a license or registration issued under this
52-1 article except to prohibit false, misleading, or deceptive
52-2 practices.
52-3 (b) In the commissioner's rules to prohibit false,
52-4 misleading, or deceptive practices, the commissioner may not
52-5 include a rule that:
52-6 (1) restricts the use of any medium for advertising;
52-7 (2) restricts the use of a license or registration
52-8 holder's personal appearance or voice in an advertisement;
52-9 (3) relates to the size or duration of an
52-10 advertisement by the license or registration holder; or
52-11 (4) restricts the license or registration holder's
52-12 advertisement under a trade name.
52-13 Sec. 10A. DISCIPLINARY HEARING. If the State Fire Marshal
52-14 proposes to suspend, revoke, or refuse to renew a license or
52-15 certificate of registration of a person, the person is entitled to
52-16 a hearing conducted by the State Office of Administrative Hearings.
52-17 Proceedings for a disciplinary action are governed by the
52-18 administrative procedure law, Chapter 2001, Government Code. Rules
52-19 of practice adopted by the commissioner applicable to the
52-20 proceedings for a disciplinary action may not conflict with rules
52-21 adopted by the State Office of Administrative Hearings.
52-22 SECTION 4.11. Section 6, Article 5.43-3, Insurance Code, is
52-23 amended to read as follows:
52-24 Sec. 6. ADVISORY COUNCIL. (a) The Fire Protection Advisory
52-25 Council is created. The commissioner [board] shall appoint the
53-1 members of the advisory council, who shall serve at the pleasure of
53-2 the commissioner [board].
53-3 (b) The advisory council, in addition to other duties
53-4 delegated by the commissioner [board], shall [in accordance with
53-5 Section 417.0041, Government Code]:
53-6 (1) advise the State Fire Marshal concerning practices
53-7 in the fire protection sprinkler system industry and the rules
53-8 necessary to implement and administer this article; and
53-9 (2) make recommendations to the State Fire Marshal
53-10 regarding forms and procedures for certificates of registration and
53-11 licenses.
53-12 (c) The advisory council shall have seven members as
53-13 follows:
53-14 (1) three individuals who have been actively engaged
53-15 in the management of a fire protection sprinkler system business
53-16 for not less than five years preceding their appointment;
53-17 (2) one representative of the engineering section of
53-18 the board's property division;
53-19 (3) one volunteer fire fighter [member of the State
53-20 Firemen's and Fire Marshal's Association of Texas]; and
53-21 (4) one member from each of two fire departments of
53-22 incorporated cities of this state.
53-23 (d) The advisory council shall periodically review rules
53-24 implementing this article and recommend changes in the rules to the
53-25 commissioner.
54-1 (e) The State Firemen's and Fire Marshals' Association of
54-2 Texas may, on request by the commissioner, recommend a volunteer
54-3 fire fighter for appointment to the advisory council.
54-4 SECTION 4.12. Article 5.43-3, Insurance Code, is amended by
54-5 adding Sections 7A and 9A to read as follows:
54-6 Sec. 7A. CERTAIN RULES PROHIBITED. (a) The commissioner
54-7 may not adopt rules restricting competitive bidding or advertising
54-8 by the holder of a certificate of registration, license, or permit
54-9 issued under this article except to prohibit false, misleading, or
54-10 deceptive practices.
54-11 (b) In the commissioner's rules to prohibit false,
54-12 misleading, or deceptive practices, the commissioner may not
54-13 include a rule that:
54-14 (1) restricts the use of any medium for advertising;
54-15 (2) restricts the use of a certificate, license, or
54-16 permit holder's personal appearance or voice in an advertisement;
54-17 (3) relates to the size or duration of an
54-18 advertisement by the certificate, license, or permit holder; or
54-19 (4) restricts the certificate, license, or permit
54-20 holder's advertisement under a trade name.
54-21 Sec. 9A. DISCIPLINARY HEARING. If the State Fire Marshal
54-22 proposes to suspend, revoke, or refuse to renew a certificate of
54-23 registration, license, or permit of a person, the person is
54-24 entitled to a hearing conducted by the State Office of
54-25 Administrative Hearings. Proceedings for a disciplinary action are
55-1 governed by the administrative procedure law, Chapter 2001,
55-2 Government Code. Rules of practice adopted by the commissioner
55-3 applicable to the proceedings for a disciplinary action may not
55-4 conflict with rules adopted by the State Office of Administrative
55-5 Hearings.
55-6 SECTION 4.13. Article 5.43-4, Insurance Code, is amended to
55-7 read as follows:
55-8 Art. 5.43-4. FIREWORKS
55-9 Sec. 1. Definitions. In this article:
55-10 (1) "Board" means the State Board of Insurance.
55-11 (2) "Fireworks 1.3G [Class B fireworks" or "special
55-12 fireworks]" means a large fireworks device designed primarily to
55-13 produce visible or audible effects by combustion, deflagration, or
55-14 detonation and that is classified as a 1.3G [Class B] explosive by
55-15 the United States Department of Transportation in 49 C.F.R. Part
55-16 173 (1996).
55-17 (3) "Fireworks 1.4G [Class C fireworks" or "common
55-18 fireworks]" means a small fireworks device designed primarily to
55-19 produce visible or audible effects by combustion, deflagration, or
55-20 detonation that complies with the construction, labeling, and
55-21 chemical composition requirements of the United States Consumer
55-22 Product Safety Commission in 16 C.F.R. Part 1507 (1996) [(1984)],
55-23 or the most recently adopted version of that rule, [and the
55-24 labeling requirements] of the United States Consumer Product Safety
55-25 Commission, and that is classified [as a Class C explosive] by the
56-1 United States Department of Transportation in 49 C.F.R. Part 173
56-2 (1996).
56-3 (4) "Department" means the United States Department of
56-4 Transportation.
56-5 (5) "Distributor" means a person or entity that
56-6 imports fireworks into this state or sells fireworks to jobbers,
56-7 retailers, or other distributors for resale to others, or to public
56-8 display permittees or multiple public display permittees or other
56-9 firework permittees.
56-10 (6) "Fireworks" means any composition or device
56-11 designed for entertainment to produce a visible or audible effect
56-12 by combustion, explosion, deflagration, or detonation, and that is
56-13 defined in 49 C.F.R. Section 173.56(j) (1996) [as "special
56-14 fireworks" by 49 C.F.R. Section 173.88(d) (1983), or as "common
56-15 fireworks" by 49 C.F.R. Section 173.100(r) (1983)].
56-16 (7) "Fire prevention officer" means the chief of a
56-17 fire department, a fire marshal, the county fire marshal, the
56-18 sheriff, a constable, any other local enforcement officer primarily
56-19 responsible for fire prevention, or, if there is no local fire
56-20 authority, the state fire marshal.
56-21 (8) "Illegal fireworks" means a fireworks device
56-22 manufactured, distributed, or sold in violation of this article.
56-23 (9) "Indoor or Proximate Display" means a pyrotechnic
56-24 display involving the ignition of Fireworks 1.3G or 1.4G for public
56-25 amusement where audiences are closer to pyrotechnic devices than
57-1 permitted by NFPA 1123 Code of Fireworks Display. This term does
57-2 not include the use of Fireworks 1.4G by a retail consumer for
57-3 private or personal amusement ["Importer" means a person who
57-4 imports fireworks from a foreign country or from another state for
57-5 sale to distributors or jobbers in this state].
57-6 (10) "Jobber" means a person who purchases fireworks
57-7 for resale to retailers only.
57-8 (11) "Manufacturer" means a person, firm, corporation,
57-9 or association that engages in the making of fireworks.
57-10 (12) "Person" means an individual or entity, including
57-11 an owner, manager, officer, employee, or occupant.
57-12 (13) "Public display" means the igniting of Fireworks
57-13 1.3G [Class B fireworks] for public or private amusement.
57-14 (14) "Pyrotechnic operator" means an individual who,
57-15 by experience, training, and passing any required examination, has
57-16 demonstrated the necessary skill and ability for safely assembling,
57-17 discharging, and supervising proximate [public] displays of
57-18 Fireworks 1.3G or Fireworks 1.4G [Class B fireworks].
57-19 (15) "Retailer" means a person who purchases fireworks
57-20 for resale to the general public only.
57-21 (16) "Sale" means the sale or offering for sale any
57-22 merchandise, equipment, or service, at wholesale or retail, to the
57-23 public or to any person, for an agreed sum of money or other
57-24 consideration.
57-25 (17) "State fire marshal" means the chief law
58-1 enforcement officer of the state charged with the responsibility of
58-2 fire prevention.
58-3 (18) "Insurance agent" means:
58-4 (A) a person, firm, or corporation licensed
58-5 under Article 21.14 or 1.14-2 of this code;
58-6 (B) a salaried, state, or special agent; and
58-7 (C) a person authorized to represent an
58-8 insurance fund or pool created by a city, county, or other
58-9 political subdivision of the state under The Interlocal Cooperation
58-10 Act (Article 4413(32c), Vernon's Texas Civil Statutes).
58-11 (19) "Pyrotechnic special effects operator" means an
58-12 individual who, by experience, training, and passing any required
58-13 examination, has demonstrated the necessary skill and ability for
58-14 safely assembling, discharging, and supervising proximate displays
58-15 of Fireworks 1.3G or Fireworks 1.4G.
58-16 Sec. 2. Permissible Fireworks. (a) Except as provided by
58-17 Subsection (b) of this section, Fireworks 1.4G [Class C fireworks]
58-18 are permissible fireworks.
58-19 (b) The following are not permissible fireworks:
58-20 (1) sky rockets, also known as "bottle rockets":
58-21 (A) with a total propellant charge of less than
58-22 four grams;
58-23 (B) with a casing size of less than five-eighths
58-24 of an inch for the outside diameter and less than 3 1/2 inches in
58-25 length; and
59-1 (C) with an overall length, including stick, of
59-2 less than 15 inches; and
59-3 (2) other fireworks determined not acceptable by the
59-4 United States Consumer Product Safety Commission.
59-5 (c) The term "bottle rocket" may not be used in association
59-6 with the advertisement or sale of fireworks.
59-7 Sec. 3. LOCAL REGULATION. This article and rules adopted
59-8 under this article have uniform force and effect throughout the
59-9 state. Any lawfully enacted municipal or county ordinance, order,
59-10 or rule in effect on the effective date of this article is not
59-11 invalidated by this article. This article does not limit or
59-12 restrict the authority of counties, where specifically authorized
59-13 by statute to do so, or of cities, towns, or villages as defined by
59-14 Title 28, Revised Statutes, to enact ordinances or orders
59-15 prohibiting or further regulating fireworks.
59-16 Sec. 4. EXCEPTIONS TO APPLICABILITY OF ARTICLE. This
59-17 article does not apply to:
59-18 (1) toy pistols, toy canes, toy guns, or other devices
59-19 that use paper or plastic caps in sheets, strips, rolls, or
59-20 individual caps containing not more than an average of 25
59-21 hundredths of a grain of explosive composition per cap
59-22 [manufactured in accordance with 49 C.F.R. Section 173.100(p)
59-23 (1983),] and that are packed and shipped according to 49 C.F.R.
59-24 Part 173 (1996) [department regulations];
59-25 (2) model rockets and model rocket motors designed,
60-1 sold, and used for the purpose of propelling recoverable aero
60-2 models;
60-3 (3) propelling or expelling charges consisting of a
60-4 mixture of sulfur, charcoal, and potassium nitrate;
60-5 (4) novelties and trick noisemakers;
60-6 (5) the sale, at wholesale, of any type of fireworks
60-7 by a resident manufacturer, distributor, importer, or jobber if the
60-8 fireworks are intended for shipment directly out of state in
60-9 accordance with department regulations;
60-10 (6) the sale, and use in emergency situations, of
60-11 pyrotechnic signaling devices or distress signals for marine,
60-12 aviation, or highway use;
60-13 (7) the use of fusee and railway torpedoes by
60-14 railroads;
60-15 (8) the sale of blank cartridges for use in radio,
60-16 television, film, or theater productions, for signal or ceremonial
60-17 purposes in athletic events, or for industrial purposes; or
60-18 (9) the use of any pyrotechnic device by military
60-19 organizations.
60-20 Sec. 5. ADMINISTRATION. The commissioner [board] shall
60-21 administer this article through the state fire marshal and may
60-22 issue rules for the commissioner's [its] administration in
60-23 accordance with Section 5B of this article [417.0041, Government
60-24 Code]. The commissioner [board], in promulgating rules, may use
60-25 standards recognized by federal law or regulation, and those
61-1 published by a nationally recognized standards-making organization.
61-2 Rules may not be adopted under this article that are more
61-3 restrictive than the rules in effect on September [January] 1, 1998
61-4 [1991], without specific statutory authority.
61-5 [Sec. 5A. TRANSFER OF POWERS AND DUTIES. The powers and
61-6 duties assigned to the State Board of Insurance under this article
61-7 are transferred to the Texas Commission on Fire Protection. The
61-8 commission and the board by rule may make and adopt memoranda of
61-9 understanding under which the board will exercise certain powers
61-10 and duties under this article if it is more appropriate for the
61-11 board to do so.]
61-12 Sec. 5B. ADVISORY COUNCIL. (a) The commissioner
61-13 [commission] shall establish an advisory council to assist the
61-14 commission in the administration of this article. The council is
61-15 composed of five members who must be representatives from the
61-16 fireworks industry. The[, three of whom must be appointed from a
61-17 list submitted to the commission by the] Texas Pyrotechnic
61-18 Association may, on request by the commissioner, recommend
61-19 individuals for appointment to the council. A council member
61-20 serves at the will of the commissioner [commission].
61-21 (b) The council shall periodically review rules relating to
61-22 the program and recommend changes in the rules to the commissioner.
61-23 Notwithstanding Section 2001.031, Government Code, the commissioner
61-24 shall submit all proposed changes and additions to the rules that
61-25 relate to administration of this article to the council for
62-1 development. If the commissioner does not approve a rule developed
62-2 by the council, the commissioner shall indicate to the council the
62-3 reasons that the commissioner did not approve the rule and return
62-4 the rule to the council for further development [assist the
62-5 commission in the review and adoption of rules under this article
62-6 as provided by Section 417.0041, Government Code].
62-7 Sec. 6. LICENSES. (a) A person engaged in the business of
62-8 manufacturing, distributing, jobbing, or importing fireworks to be
62-9 sold or used in this state, or of supervising or conducting public
62-10 fireworks displays, must obtain the appropriate license for that
62-11 activity as provided by this section.
62-12 (b) A person who manufactures, stores, possesses, and sells
62-13 the fireworks constructed by that person must have a manufacturer's
62-14 license. The commissioner [board] shall set and collect an annual
62-15 license fee not to exceed $1,000 for a manufacturer's license. The
62-16 licensed manufacturer may sell Fireworks 1.4G [Class C fireworks]
62-17 only to distributors and jobbers, and may sell Fireworks 1.3G
62-18 [Class B fireworks] only to distributors, [or] licensed pyrotechnic
62-19 operators, or fireworks public display permittees for use in public
62-20 fireworks displays in this state. A licensed manufacturer may
62-21 manufacture, store, possess, and sell items other than permissible
62-22 fireworks, but only for sale and delivery to authorized persons in
62-23 states in which those other types of fireworks are permissible.
62-24 (c) A person who imports into this state or who stores,
62-25 possesses, and sells Fireworks 1.3G to pyrotechnic operators, other
63-1 distributors, single public display permittees, multiple public
63-2 display permittees, or agricultural, industrial, and wildlife
63-3 control fireworks permittees, or who imports or stores, possesses,
63-4 and sells Fireworks 1.4G [Class C fireworks] to jobbers, retailers,
63-5 and other distributors in this state must have a distributor's
63-6 license. The commissioner [board] shall set and collect an annual
63-7 license fee not to exceed $1,500 for a distributor's license.
63-8 [Licensed distributors may also possess, store, and sell Class B
63-9 fireworks in this state.]
63-10 (d) A person who stores, possesses, and sells Fireworks 1.4G
63-11 only [Class C fireworks] to retailers in this state must have a
63-12 jobber's license. The commissioner [board] shall set and collect
63-13 an annual license fee not to exceed $1,000 for a jobber's license.
63-14 (e) [A person who imports and sells to any distributor or
63-15 jobber in this state Class C fireworks or who imports and sells to
63-16 any distributor or pyrotechnic operator in this state Class B
63-17 fireworks for use only in public fireworks displays must have an
63-18 importer's license. The board shall set and collect an annual
63-19 license fee not to exceed $200 for an importer's license.]
63-20 [(f)] A person who assembles, conducts, and supervises
63-21 public fireworks displays using Fireworks 1.3G [Class B fireworks]
63-22 must have a pyrotechnic operator's license. The commissioner
63-23 [board] shall set and collect an annual license fee not to exceed
63-24 $100 for a pyrotechnic operator's license. To qualify for a
63-25 pyrotechnic operator's license, a person must take and pass an
64-1 examination, if any should be required, conducted by the
64-2 commissioner [board] through the state fire marshal's office. A
64-3 nonrefundable fee for the initial examination must be in an amount
64-4 not to exceed $30. A nonrefundable fee in an amount not to exceed
64-5 $20 shall be charged for each reexamination.
64-6 (f) [(g)] A person who assembles, conducts, and supervises
64-7 proximate displays using Fireworks 1.3G or Fireworks 1.4G as
64-8 defined in NFPA 1126 Standard of the Use of Pyrotechnics Before a
64-9 Proximate Audience must have a pyrotechnic special effects
64-10 operator's license. The commissioner shall set and collect an
64-11 annual license fee not to exceed $100 for a pyrotechnic special
64-12 effects operator's license. To qualify for a pyrotechnic special
64-13 effects operator's license, a person must take and pass an
64-14 examination, if any should be required, conducted by the
64-15 commissioner through the state fire marshal's office. A
64-16 nonrefundable fee for the initial examination must be in an amount
64-17 not to exceed $30. A nonrefundable fee in an amount not to exceed
64-18 $20 shall be charged for each reexamination [multiple public
64-19 fireworks displays at a single location must have a public display
64-20 license. The board shall set and collect an annual license fee
64-21 not to exceed $400 for a public display license. The holder of a
64-22 public display license is not required to obtain a public display
64-23 permit. This article does not limit the authority of the state
64-24 fire marshal to inspect the location of the display or to require
64-25 appropriate fire protection measures].
65-1 (g) [(h)] A fee in an amount not to exceed $20 must be
65-2 charged for a duplicate license issued by the commissioner [board]
65-3 and for any requested change to a license.
65-4 Sec. 7. RENEWAL. (a) A licensee may renew an unexpired
65-5 license by paying the required renewal fee to the state fire
65-6 marshal any time before the license expires. A license that has
65-7 been expired for not more than 90 days may be renewed by paying to
65-8 the state fire marshal the required annual fee plus an additional
65-9 amount of one-half of the original license fee. A license that has
65-10 been expired for more than 90 days but less than two years may be
65-11 renewed by paying to the state fire marshal all unpaid annual fees
65-12 which are in arrears plus an additional amount equal to the
65-13 original license fee. A license that has been expired for two
65-14 years or more may not be renewed. A new license may be obtained by
65-15 complying with the requirements and procedures for obtaining an
65-16 original license. Not later than the 30th day before the
65-17 expiration date of a license, the state fire marshal shall send
65-18 written notice of the impending license expiration to the licensee
65-19 at the licensee's last known address. This section does not
65-20 prevent the state fire marshal from denying or refusing to renew a
65-21 license for any reason provided by law or the rules of the
65-22 commissioner [board].
65-23 (b) The commissioner [board] by rule may provide for
65-24 different expiration dates for the various types of licenses. If
65-25 the expiration date of a license is less than one year from the
66-1 date of its issuance or anniversary date, the license fee shall be
66-2 prorated on the basis of the number of months during which the
66-3 license is valid. The total annual fee is payable each time the
66-4 license is renewed.
66-5 Sec. 8. RETAIL PERMITS. (a) A person who sells fireworks
66-6 directly to the general public must obtain annually a nonrenewable
66-7 retail fireworks permit for each retail location. The commissioner
66-8 [board] shall set and collect a permit fee not to exceed $20 for a
66-9 retail fireworks permit. Permits may be purchased from a licensed
66-10 manufacturer, distributor, or jobber, or through the state fire
66-11 marshal's office. The holder of a retail fireworks permit may only
66-12 sell fireworks to the general public, and only during periods:
66-13 (1) beginning June 24 and ending at midnight on July
66-14 4; and
66-15 (2) beginning December 20 and ending at midnight on
66-16 January 1 of the following year.
66-17 (b) A retail fireworks permit expires on January 31 each
66-18 year. A retail fireworks permit is not renewable.
66-19 (c) Licensed manufacturers, distributors, or jobbers may
66-20 obtain retail fireworks permits at any time during the year. The
66-21 commissioner [board] shall provide permits for this purpose in
66-22 books containing 20 permits each. The permit must be clearly
66-23 printed with the year, date, and permit number. The manufacturer,
66-24 distributor, or jobber shall keep a record of all permits issued
66-25 and shall submit the record to the commissioner [board] through the
67-1 state fire marshal in the manner prescribed by the commissioner
67-2 [board]. Outdated permits may only be exchanged for current
67-3 permits in the year following their expiration.
67-4 Sec. 9. PUBLIC DISPLAY PERMITS. (a) The commissioner
67-5 [board] shall set and collect a permit fee not to exceed $50 for a
67-6 Fireworks 1.3G singular [Class B fireworks] public display permit
67-7 to be obtained from the commissioner [board] through the state fire
67-8 marshal. A singular public fireworks display permit is not
67-9 renewable and is valid for only one public fireworks display to be
67-10 held during the hours and on the date or alternate date, if
67-11 provided, stated on the permit.
67-12 (b) A person or an organization who conducts multiple
67-13 fireworks displays at a single location may be issued a multiple
67-14 display permit. The commissioner shall set and collect an annual
67-15 permit fee not to exceed $400 for a multiple public display permit.
67-16 The holder of a multiple public display permit is not required to
67-17 obtain a singular public display permit. A multiple public display
67-18 permit is not renewable and is valid for one year from the date of
67-19 issuance. This article does not limit the authority of the state
67-20 fire marshal to inspect the location of the display or to require
67-21 appropriate fire protection measures.
67-22 (c) The commissioner shall adopt by reference the provisions
67-23 of NFPA 1123, Code for Fireworks Display, 1995 Edition, as rules
67-24 governing public displays.
67-25 (d) The commissioner shall adopt by reference the provisions
68-1 of NFPA 1126, Standards for the Use of Pyrotechnics Before a
68-2 Proximate Audience, 1996 Edition, as rules governing indoor
68-3 displays.
68-4 Sec. 10. AGRICULTURAL, INDUSTRIAL, AND WILDLIFE CONTROL
68-5 PERMITS. The commissioner [board] shall set and collect a permit
68-6 fee not to exceed $50 for a permit to use Fireworks 1.3G [Class B
68-7 special fireworks] for agricultural, industrial, or wildlife
68-8 control purposes. The applicant must specify the exact purpose for
68-9 which the fireworks are to be used before a permit may be issued.
68-10 The permit expires one year from the date of issuance and is not
68-11 renewable.
68-12 Sec. 11. NOT TRANSFERABLE. A license or permit issued under
68-13 this article is not transferable.
68-14 Sec. 12. EXAMINATIONS. The state fire marshal shall, not
68-15 later than the 30th day after the date on which an examination is
68-16 administered under this article, send notice to each examinee of
68-17 the results of the examination. If the examination is conducted,
68-18 graded, or reviewed by a testing service, the state fire marshal
68-19 shall send notice to the examinee of the result of the examination
68-20 not later than the 14th day after the date on which the state fire
68-21 marshal receives the result from the testing service. If the
68-22 notice of the examination result will be delayed for more than 90
68-23 days after the examination date, the state fire marshal shall send,
68-24 before the 90th day, a notice informing the examinee of the reason
68-25 for the delay. The state fire marshal shall, on written request by
69-1 a person who fails the licensing examination, send the person an
69-2 analysis of the person's performance on the examination.
69-3 Sec. 13. LICENSE BY RECIPROCITY. The commissioner [board]
69-4 may waive an examination requirement for an applicant with a valid
69-5 license from another state if, in the commissioner's [board's]
69-6 opinion, the license requirements of the other state are
69-7 substantially equivalent to those of this state.
69-8 Sec. 14. PUBLIC DISPLAYS. (a) An adult individual or a
69-9 firm, partnership, corporation, or association planning to make a
69-10 public fireworks display shall submit, under rules adopted by the
69-11 commissioner [board], a written application to the state fire
69-12 marshal for a [license or] permit.
69-13 (b) It is the duty of the appropriate fire prevention
69-14 officer, as designated or approved by the state fire marshal, to
69-15 make a site investigation to determine whether a proposed fireworks
69-16 display is of a nature or in a location that may be hazardous to
69-17 property or dangerous to any person. The officer may, in the
69-18 exercise of reasonable discretion, approve or disapprove the
69-19 display site, and may impose reasonable conditions on the display.
69-20 Following the inspection of the proposed display site, the fire
69-21 prevention officer shall notify the state fire marshal of the
69-22 results of the inspection, and the state fire marshal shall
69-23 determine if a permit is to be issued. In this subsection,
69-24 "appropriate fire prevention officer" means a person with fire
69-25 prevention authority in a particular jurisdiction.
70-1 Sec. 15. INSURANCE. (a) An applicant for a public display
70-2 [license or] permit must submit to the state fire marshal evidence
70-3 of a general liability insurance policy in an amount of not less
70-4 than $500,000 [$300,000] unless the commissioner [board] increases
70-5 or decreases the amount under Section 16 of this article. The
70-6 policy shall be conditioned to pay those sums the insured becomes
70-7 obligated to pay as damages because of bodily injury and property
70-8 damage caused by an occurrence involving the insured or the
70-9 insured's servant, officer, agent, or employee in the conduct of a
70-10 public fireworks display.
70-11 (b) Evidence of the liability insurance policy required by
70-12 this section must be in the form of a certificate of insurance
70-13 issued by an insurer authorized to do business in this state and
70-14 countersigned by an insurance agent licensed in this state. A
70-15 certificate of insurance for surplus lines coverage procured in
70-16 compliance with Article 1.14-2 of this code through a licensed
70-17 Texas surplus lines agent resident in this state may be filed with
70-18 the commissioner [board] as evidence of coverage required by this
70-19 section. An insurer may not cancel a certificate of insurance
70-20 issued under this section unless the insurer gives the state fire
70-21 marshal notice of intent to cancel as required by the commissioner
70-22 [board]. A multiple public display permit [license] or singular
70-23 public display permit may not be issued without evidence of general
70-24 liability insurance as required by this section. The requirement
70-25 of this section may be satisfied by a city, county, or other
71-1 political subdivision presenting proof of its participation in a
71-2 self-insurance fund or other fund created under The Interlocal
71-3 Cooperation Act (Article 4413(32c), Vernon's Texas Civil Statutes)
71-4 covering the liability requirements under this article.
71-5 Sec. 16. POWERS AND DUTIES OF THE COMMISSIONER [BOARD].
71-6 (a) The commissioner [board] shall adopt and through the state
71-7 fire marshal shall administer rules the commissioner [board]
71-8 considers necessary for the protection, safety, and preservation of
71-9 life and property, including rules regulating:
71-10 (1) the issuance of licenses and permits to persons
71-11 engaged in manufacturing, selling, storing, possessing, or
71-12 transporting fireworks in this state;
71-13 (2) the conduct of public fireworks displays; and
71-14 (3) the safe storage of Fireworks 1.4G [Class C
71-15 fireworks] and Fireworks 1.3G [Class B fireworks].
71-16 (b) The commissioner [board] also shall:
71-17 (1) determine reasonable criteria and qualifications
71-18 for licenses and permits;
71-19 (2) set license and permit fees within the limits
71-20 provided by this article;
71-21 (3) determine the qualifications and examination
71-22 requirements for pyrotechnics operators; and
71-23 (4) establish a procedure for reporting and processing
71-24 complaints.
71-25 (c) The commissioner [board] may, after notice and
72-1 opportunity for hearing, increase or decrease the limits of
72-2 insurance coverage.
72-3 Sec. 16A. CERTAIN RULES PROHIBITED. (a) The commissioner
72-4 may not adopt rules restricting competitive bidding or advertising
72-5 by the holder of a license or permit issued under this article
72-6 except to prohibit false, misleading, or deceptive practices.
72-7 (b) In the commissioner's rules to prohibit false,
72-8 misleading, or deceptive practices, the commissioner may not
72-9 include a rule that:
72-10 (1) restricts the use of any medium of advertising;
72-11 (2) restricts the use of a license or permit holder's
72-12 personal appearance or voice in an advertisement;
72-13 (3) relates to the size or duration of an
72-14 advertisement by the license or permit holder; or
72-15 (4) restricts the license or permit holder's
72-16 advertisement under a trade name.
72-17 Sec. 17. PROHIBITED ACTS. (a) Fireworks within this state
72-18 may not be sold at retail, offered for sale at retail, or possessed
72-19 for retail sale within this state, may not be transported, used, or
72-20 exploded in this state, unless the fireworks conform [are properly
72-21 identified as conforming] to the standards of the United States
72-22 Consumer Product Safety Commission and the [as] United States
72-23 Department of Transportation [common fireworks. The identification
72-24 must be printed on all shipping cases, fireworks devices, and
72-25 retail containers. The imprint must be sufficiently conspicuous to
73-1 be readily recognized by law enforcement authorities and the
73-2 general public]. A manufacturer may be required to submit samples
73-3 of all fireworks to the state fire marshal for approval.
73-4 (b) A person or organization may not manufacture,
73-5 distribute, sell at wholesale or retail, or use fireworks in a
73-6 public fireworks display or for agricultural, industrial, or
73-7 wildlife control purposes without obtaining the appropriate license
73-8 or permit. Fireworks manufactured, distributed, sold, or used in
73-9 violation of this subsection are illegal fireworks.
73-10 (c) A person may only offer for sale to the general public
73-11 Fireworks 1.4G [Class C fireworks] at authorized retail locations.
73-12 All mail order sales of Fireworks 1.4G [Class C fireworks] are
73-13 prohibited.
73-14 (d) Fireworks may not be sold or offered for sale to
73-15 children under 12 years of age or to an intoxicated or incompetent
73-16 person. A person selling fireworks at retail shall make a
73-17 reasonable effort to ascertain that potential purchasers are of the
73-18 minimum age required by this subsection.
73-19 (e) A person under 21 years of age may not be issued a
73-20 pyrotechnic operator's license or a public fireworks display
73-21 [license or] permit. The minimum age for all other licenses and
73-22 permits is 18 years.
73-23 (f) A person may not:
73-24 (1) explode or ignite fireworks within 600 feet of any
73-25 church, a hospital other than a veterinary hospital, an asylum, a
74-1 licensed child care center, or a public or private primary or
74-2 secondary school or institution of higher education unless they
74-3 receive authorization in writing from that organization;
74-4 (2) sell at retail, explode, or ignite fireworks
74-5 within 100 feet of a place where flammable liquids or flammable
74-6 compressed gasses are stored and dispensed;
74-7 (3) explode or ignite fireworks within 100 feet of a
74-8 place where fireworks are stored or sold;
74-9 (4) ignite or discharge fireworks within or from a
74-10 motor vehicle;
74-11 (5) place ignited fireworks in, or throw ignited
74-12 fireworks at, a motor vehicle;
74-13 (6) conduct a public fireworks display that includes
74-14 Fireworks 1.3G [Class B fireworks] unless the person is a licensed
74-15 pyrotechnic operator;
74-16 (7) conduct a proximate [an indoor] display of
74-17 fireworks that includes Fireworks 1.3G or Fireworks 1.4G as
74-18 defined in NFPA 1126 Standards for the Use of Pyrotechnics Before a
74-19 Proximate Audience unless the person is a licensed pyrotechnic
74-20 special effects operator and has [Class C fireworks without] the
74-21 approval of the local fire prevention officer;
74-22 (8) obtain or attempt to obtain a license or permit by
74-23 fraudulent representation; or
74-24 (9) sell, store, manufacture, distribute, or display
74-25 fireworks except as provided by this article or rules adopted by
75-1 the commissioner [board] under this article.
75-2 (g) A manufacturer, distributor, jobber, or importer, may
75-3 not sell fireworks to a person who does not hold a valid license or
75-4 permit.
75-5 (h) A person may not alter or deface a license or permit.
75-6 An altered or defaced license or permit is void.
75-7 Sec. 18. ISSUANCE, SUSPENSION, REVOCATION, AND RENEWAL OF
75-8 [APPLICATIONS FOR AND HEARINGS ON] LICENSES AND PERMITS. (a) The
75-9 commissioner [board] shall adopt rules for applications and set
75-10 qualifications for licenses and permits.
75-11 (b) The commissioner [board] may, through the state fire
75-12 marshal, suspend, revoke, or refuse to issue or renew [conduct
75-13 hearings or proceedings concerning the suspension, revocation, or
75-14 refusal to issue or renew] a license or permit.
75-15 (c) A license or permit may be denied, suspended, or
75-16 revoked, or renewal may be refused, if the commissioner [board],
75-17 through the state fire marshal and after notice and a public
75-18 hearing conducted under Section 18A of this article, finds that any
75-19 provision of this article, or any rule promulgated under this
75-20 article, has been violated.
75-21 (d) A person or organization that has a license or permit
75-22 revoked may not reapply for the license or permit earlier than one
75-23 year from the date of revocation. A person reapplying under this
75-24 subsection must request a public hearing on the reissuance of the
75-25 license or permit, and has the burden of proving that a license or
76-1 permit should be granted.
76-2 Sec. 18A. DISCIPLINARY HEARING. If the state fire marshal
76-3 proposes to suspend, revoke, or refuse to renew a license or permit
76-4 of a person, the person is entitled to a hearing conducted by the
76-5 State Office of Administrative Hearings. Proceedings for a
76-6 disciplinary action are governed by the administrative procedure
76-7 law, Chapter 2001, Government Code. Rules of practice adopted by
76-8 the commissioner applicable to the proceedings for a disciplinary
76-9 action may not conflict with the rules adopted by the State Office
76-10 of Administrative Hearings.
76-11 Sec. 19. PENALTIES. (a) A person commits an offense if the
76-12 person knowingly or intentionally violates Section 17 of this
76-13 article.
76-14 (b) An offense under this section is a Class B misdemeanor.
76-15 (c) Each day that a violation occurs or continues
76-16 constitutes a separate offense.
76-17 (d) Venue under this section is in the county in which the
76-18 offense is committed or in Travis County.
76-19 (e) If the commissioner [board] determines that a violation
76-20 of this article creates a threat to the public safety, the
76-21 commissioner [board] may bring suit in the district court of the
76-22 county in which the person who committed the offense resides or has
76-23 an office to enjoin the person from engaging in the prohibited
76-24 activity. The commissioner [board] is not required to give bond as
76-25 a condition to the issuance of injunctive relief.
77-1 (f) The state fire marshal, a fire chief, a fire marshal,
77-2 their deputies, or a police or peace officer may seize illegal
77-3 fireworks as defined by this article. Fireworks seized in the
77-4 enforcement of this article shall be kept in the custody of the
77-5 seizing agent or the sheriff of the county in which the fireworks
77-6 were seized. The owner of the seized fireworks may file an action
77-7 contesting the seizure in a district court in the county in which
77-8 the fireworks were seized. The court may, not later than the 30th
77-9 day after the hearing on the seizure, authorize the return of part
77-10 or all of the confiscated fireworks. The court shall order any
77-11 fireworks not returned to be destroyed. If an action contesting
77-12 the seizure is not filed by the 30th day after the seizure, the
77-13 seizing agent or the sheriff shall destroy the fireworks.
77-14 Sec. 20. DEPOSIT OF FEES IN TREASURY. The fees collected
77-15 under this article shall be deposited in the state treasury to the
77-16 credit of the insurance board operating fund and may not be
77-17 appropriated for a purpose other than activities of the State Board
77-18 of Insurance.
77-19 SECTION 4.14. The following laws are repealed:
77-20 (1) Section 2A, Article 5.43-1, Insurance Code;
77-21 (2) Subdivision (3), Section 2, Article 5.43-2,
77-22 Insurance Code;
77-23 (3) Section 4A, Article 5.43-2, Insurance Code;
77-24 (4) Subdivision (4), Section 1, Article 5.43-3,
77-25 Insurance Code; and
78-1 (5) Section 3A, Article 5.43-3, Insurance Code.
78-2 SECTION 4.15. The change in law made by Section 13, Article
78-3 5.43-1, Insurance Code, Section 10A, Article 5.43-2, Insurance
78-4 Code, Section 9A, Article 5.43-3, Insurance Code, and Section 18A,
78-5 Article 5.43-4, Insurance Code, as added by this Act, applies only
78-6 to a disciplinary proceeding commenced on or after the effective
78-7 date of this Act. A disciplinary proceeding commenced before the
78-8 effective date of this Act is governed by the law in effect
78-9 immediately before the effective date of this Act, and that law is
78-10 continued in effect for this purpose.
78-11 ARTICLE 5. DIVISION OF EMERGENCY MANAGEMENT
78-12 SECTION 5.01. Subchapter E, Chapter 418, Government Code, is
78-13 amended by adding Section 418.110 to read as follows:
78-14 Sec. 418.110. STATEWIDE MUTUAL AID PROGRAM FOR FIRE
78-15 EMERGENCIES. The division, in consultation with the Texas
78-16 Commission on Fire Protection, shall develop a statewide mutual aid
78-17 program for fire emergencies.
78-18 ARTICLE 6. TRANSFER OF FUNCTIONS AND DUTIES
78-19 SECTION 6.01. (a) The powers, duties, rights, obligations,
78-20 contracts, records, personnel, property, funds, and unspent
78-21 appropriations of the Texas Commission on Fire Protection with
78-22 respect to the commission's administration of Articles 5.43-1,
78-23 5.43-2, 5.43-3, and 5.43-4, Insurance Code, and the operations of
78-24 the state fire marshal or the Texas Fire Incident Reporting System
78-25 are transferred to the Texas Department of Insurance.
79-1 (b) A rule of the Texas Commission on Fire Protection that
79-2 relates to the commission's administration of Articles 5.43-1,
79-3 5.43-2, 5.43-3, and 5.43-4, Insurance Code, or the operations of
79-4 the state fire marshal or the Texas Fire Incident Reporting System
79-5 continues in effect as a rule of the Commissioner of Insurance
79-6 until superseded by a rule of the commissioner.
79-7 (c) The state fire marshal serving on the effective date of
79-8 this Act continues to serve unless replaced by the Commissioner of
79-9 Insurance in accordance with Section 417.002, Government Code, as
79-10 amended by this Act.
79-11 (d) Notwithstanding any other provision of this section, the
79-12 state fire marshal and the Texas Commission on Fire Protection may
79-13 continue to colocate office space within Travis County on and after
79-14 the effective date of this Act.
79-15 (e) Not later than January 1, 1998, the Texas Commission on
79-16 Fire Protection and the Commissioner of Insurance shall adopt a
79-17 memorandum of understanding to accomplish an orderly transfer in
79-18 accordance with this section.
79-19 SECTION 6.02. (a) Except as provided by Section 419.0091,
79-20 Government Code, as added by this Act, each person employed as an
79-21 attorney for the Texas Commission on Fire Protection, and any
79-22 unspent appropriations relating to the employment of these persons,
79-23 are transferred to the Texas Department of Insurance to provide
79-24 legal assistance relating to programs administered by the state
79-25 fire marshal.
80-1 (b) Not later than January 1, 1998, the Texas Commission on
80-2 Fire Protection and the Commissioner of Insurance shall adopt a
80-3 memorandum of understanding to accomplish an orderly transfer in
80-4 accordance with this section.
80-5 ARTICLE 7. EFFECTIVE DATE AND EMERGENCY
80-6 SECTION 7.01. This Act takes effect September 1, 1997.
80-7 SECTION 7.02. The importance of this legislation and the
80-8 crowded condition of the calendars in both houses create an
80-9 emergency and an imperative public necessity that the
80-10 constitutional rule requiring bills to be read on three several
80-11 days in each house be suspended, and this rule is hereby suspended.
S.B. No. 371
________________________________ ________________________________
President of the Senate Speaker of the House
I hereby certify that S.B. No. 371 passed the Senate on
May 6, 1997, by a viva-voce vote; May 27, 1997, Senate refused to
concur in House amendments and requested appointment of Conference
Committee; May 29, 1997, House granted request of the Senate;
June 1, 1997, Senate adopted Conference Committee Report by a
viva-voce vote.
_______________________________
Secretary of the Senate
I hereby certify that S.B. No. 371 passed the House, with
amendments, on May 22, 1997, by a non-record vote; May 29, 1997,
House granted request of the Senate for appointment of Conference
Committee; June 1, 1997, House adopted Conference Committee Report
by a non-record vote.
_______________________________
Chief Clerk of the House
Approved:
________________________________
Date
________________________________
Governor