HBA-MPA H.B. 1248 76(R)    BILL ANALYSIS


Office of House Bill AnalysisH.B. 1248
By: Farrar
Licensing & Administrative Procedures
4/20/1999
Introduced



BACKGROUND AND PURPOSE 

H.B. 1248 changes the laws regulating the practice of architecture,
landscape architecture, and interior design in the state of Texas as
follows: 
_requires proof of continuing education from architects, allows payment by
credit card, and allows the Texas Board of Architectural Examiners (board)
to subpoena witnesses in investigations of violations; 
_eliminates a $200 registration fee;
_eliminates the ability to become a registered architect without formal
education; 
_allows the board to impose fines for violations by non-architects,
specifies appeal procedures; 
_requires proof of continuing education as a condition of registration
renewal, allows the board to set fees for late registration renewal; 
_clarifies the types of buildings that require a registered architect;
_eliminates the ability to become a landscape architect without formal
education; 
_requires proof of continuing education from landscape architects, requires
landscape architects to apply an official seal to their work and prohibits
non-landscape architects from using such a seal, and allows the board to
subpoena witnesses on investigation of violations; 
_requires interior design registration applicants to complete educational
programs before becoming registered; and 
_requires proof of continuing education from interior designers, and allows
the board to set fees for late registration renewal.  

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that this bill does
not expressly delegate any additional rulemaking authority to a state
officer, department, agency, or institution. 

SECTION BY SECTION ANALYSIS

ARTICLE 1.  REGULATION OF PRACTICE OF ARCHITECTURE

SECTION 1.01. Amends  Section 3, Article 249a,V.T.C.S., by amending
Subsections (e) and (h) and adding Subsection (j) as follows: 

(e)  Requires , rather than authorizes, the Texas Board of Architectural
Examiners (board) to recognize, prepare, or administer continuing education
programs for architects, interior designers, and, rather than or, landscape
architects, including programs relating to the requirements of the
Americans with Disabilities Act of 1990 (42 U.S.C. Section 12101 et seq.)
and Article 9102, V.T.C.S.  Provides that participation in the programs is
mandatory, rather than  voluntary. 
 
(h)  Authorizes the board to accept payment of a fee by credit card.  If a
fee is paid by credit card, and to charge a fee for processing the payment
by credit card.  Requires the board to set the processing fee in an amount
that is reasonably related to the expense incurred by the board in
processing the payment by credit card, not to exceed five percent of the
amount of the fee.  

 (j)  Authorizes the board to request and, if necessary, compel by subpoena
the attendance of witnesses for examination under oath and the production
for inspection and copying of books, accounts, records, papers,
correspondence, documents, and other evidence relevant to the investigation
of alleged violations of this article.  Authorizes the board, acting
through the attorney general, to file suit to enforce the subpoena in a
district court in Travis County or in the county in which a hearing
conducted by the board may be held, if a person fails to comply with a
subpoena issued under this subsection  Requires the court, if it determines
that good cause exists for the issuance of the subpoena, to order
compliance with the requirements of the subpoena.  Authorizes failure to
obey the order of the court to be punished by the court as contempt.  

SECTION 1.02.  Amends Section 4C(a), Article 249a, V.T.C.S., to delete from
a list of fees increased by $200 a fee for application for examination, and
a fee for out-of-state application for examination, and makes
nonsubstantive changes. 

SECTION 1.03.  Amends Section 7, Article 249a, V.T.C.S., to delete a
provision requiring the ARboard  to accept for examination an applicant who
has not graduated can present satisfactory evidence of eight years
satisfactory experience. 

SECTION 1.04.   Amends Sections 11(b) and (n),  Article 249a, V.T.C.S., to
delete the provision that the board may assess an administrative penalty to
a person registered under this article based on enumerated conditions.
Deletes provision providing that failure to comply timely with the
requirements to file a petition requesting judicial review results in a
waiver of all legal rights to judicial review.   

SECTION 1.05. Amends Sections 12(d), (e), (f), (g), and (h), Article 249a,
V.T.C.S., to require the board to issue to the registered architect a
certificate of renewal of his or her registration certificate for the term
of one year upon receipt of proof satisfactory to the board of compliance
with the continuing education requirement of the board.  Makes conforming
and nonsubstantive changes. 

SECTION 1.06.  Amends Section 14, Article 249a, V.T.C.S., to require a
person to be exempt from the provisions of this article if the person
prepares plans for a building that does not exceed a square footage of
20,000 square feet and meets certain enumerated conditions.  Makes
conforming changes. 

ARTICLE 2.  REGULATION OF PRACTICE OF LANDSCAPE ARCHITECTURE

SECTION 2.01.  Amends Section 4(b), Article 249c, V.T.C.S., to authorize
the board to accept payment of a fee by credit card. Authorizes the board
to charge a fee for processing the payment by credit card, if a fee is paid
by credit card.  Requires the board to set the processing fee in an amount
that is reasonably related to the expense incurred by the board in
processing the payment by credit card, not to exceed five percent of the
amount of the fee.  

SECTION 2.02.   Amends Section 5(a), Article 249c,V.T.C.S., to make a
conforming change. 

SECTION 2.03.  Amends Sections 7(d), (e), (f), (g), and (h), Article
249c,V.T.C.S., to make conforming and nonsubstantive changes. 

SECTION 2.04.  Amends, Article 249c,V.T.C.S., by adding Sections 8D, 8E,
and 11 as follows: 

Sec. 8D.  ADMINISTRATIVE PENALTY.  (a)  Authorizes the L.S.-board to assess
an administrative penalty against a person on a ground provided by Section
8(a) (Revocation and Suspension; Reprimand of Certificates), of this
article. 
 
(b)   Authorizes  the executive director of the board (executive director)
to issue a report stating the facts on which the determination that a
ground exists for a sanction is based, recommending that an administrative
penalty under this section be imposed on the person charged, and
recommending the amount of that proposed penalty, if after an investigation
of facts on the facts surrounding an allegation of grounds for sanctions
the executive director finds such grounds to exist.  Requires the executive
director to base the  recommended amount of the proposed penalty on the
seriousness of the determined ground.  Requires the seriousness of the
ground to be determined by consideration of the factors prescribed by
Subsection (g) of this section. 
 
(c)  Requires the executive director to give written notice of the report
to the person charged not later than the 14th day after the date on which
the report is issued.  Requires the notice to include a brief summary of
the charges, a statement of the amount of the penalty recommended, and a
statement of the right of the person charged to a hearing on the occurrence
of a ground for the penalty or on the amount of the penalty, or both the
occurrence of the ground and the amount of the penalty.  

(d)  Authorizes  the person charged to accept the determination of the
executive director, including the recommended penalty, or to make a request
for a hearing on the determination not later than the 20th day after the
date on which the notice is received.  

(e)  Requires the board to issue an order approving the determination and
ordering the payment of the recommended penalty  if the person charged
accepts the determination of the executive director. 

(f) Requires the board to set a hearing and give notice of the hearing if
the person charged requests a hearing or fails timely to respond to the
notice.  Provides that all proceedings under this subsection are subject to
Chapter 2001 (Administrative Procedure), Government Code. 

(g)  Requires the board to consider in determining the amount of the
penalty: 

(1)  the seriousness of the conduct that is the source of the ground,
including consideration of the nature, circumstances, extent, and gravity
of any relevant acts or omissions, and of the hazard or potential hazard
created to the health or safety of the public; 
(2)  the economic damage to property caused by the conduct;
(3)  the charged person's history concerning previous grounds for sanction;
(4)  the amount necessary to deter future grounds for sanction;
(5)  efforts to correct the ground for sanction; and
(6)  any other matter justice may require. 

(h) Requires the executive director to give notice of the board's order to
the person charged including certain specified information. 

(i) Requires the person charged with the penalty to pay the penalty in full
unless the person has filed a petition for judicial review of the order.  

(j)  Requires, if the person files a petition for judicial review
contesting the amount of the penalty or the occurrence of the ground for
sanction, the person to, within 30 days after the date on which the board's
order becomes final: 

(1)  forward the amount of the penalty to the board for placement in an
escrow account; 
(2)  post with the board a supersedeas bond in a form approved by the board
for the amount of the penalty, the bond to be effective until all judicial
review of the order or decision is final; or 
(3)  file with the board an affidavit sworn by the person charged stating
that the person is financially unable to forward the amount of the penalty
or to post the bond. 
 
(k)  Authorizes the board to forward the matter to the attorney general for
enforcement if the person charged fails to pay the penalty in full as
provided by Subsection (i) of this section or to timely comply with
Subsection (j) of this section.  


 (l)   Requires the judicial review of the order or decision of the board
assessing the penalty to be under the substantial evidence rule and shall
be instituted by filing a petition with a district court in Travis County,
as provided by Subchapter G (Contested Cases: Judicial Review), Chapter
2001, Government Code.  

(m)  Requires the board to remit to the person charged the appropriate
amount plus accrued interest if the penalty has been paid or execute a
release of the bond if a supersedeas bond has been posted if a penalty is
reduced or is not assessed by the reviewing court.  Requires the accrued
interest on amounts remitted by the board under this subsection to be paid
at a rate equal to the rate charged on loans to depository institutions by
the New York Federal Reserve Bank and to be paid for the period beginning
on the date the penalty is paid to the board under Subsection (i) of this
section and ending on the date the fine is remitted.  

(n)  Requires a penalty collected under this section to be deposited in the
state treasury to the credit of the general revenue fund.  

Sec. 8E.  SEAL.  (a)  Requires each landscape architect to obtain and keep
a seal with which the person shall stamp or impress each drawing or
specification issued from the person's office for use in this state.  

(b)  Requires the board to prescribe the form of the seal.  Requires the
design of the seal to be the same as that used by the board, except that it
shall bear the words "Registered Landscape Architect, State of Texas"
instead of "Texas Board of Architectural Examiners." 

(c)  Prohibits a person from using or attempting to use a seal described by
Subsection (b) of this section, a similar seal, or a replica of a seal
described by Subsection (b) of this section unless the use is by and
through a landscape architect.  

(d)  Prohibits a landscape architect from authorizing or permitting the use
of the landscape architect's seal by an unregistered person without the
landscape architect's personal supervision.  Authorizes the board to cancel
the registration certificate of a landscape architect who violates this
subsection. 
 
Sec. 11.  SUBPOENA.  (a)  Authorizes the board to request and, if
necessary, compel by subpoena the attendance of witnesses for examination
under oath and the production for inspection and copying of books,
accounts, records, papers, correspondence, documents, and other evidence
relevant to the investigation of alleged violations of this article.  

(b)  Authorizes the board, acting through the attorney general, to file
suit to enforce the subpoena in a district court in Travis County or in the
county in which a hearing conducted by the board may be held if a person
fails to comply with a subpoena issued under this section.  Requires the
court, if it determines that good cause exists for the issuance of the
subpoena, to order compliance with the requirements of the subpoena.
Authorizes the court to punish failure to obey the order of the court as
contempt.  

ARTICLE 3.  REGULATION OF PRACTICE OF INTERIOR DESIGN

SECTION 3.01.  Amends Section 5, Article 249e,V.T.C.S., by adding
Subsection (h) as follows: 

(h)  Authorizes the board to request and, if necessary, compel by subpoena
the attendance of witnesses for examination under oath and the production
for inspection and copying of books, accounts, records, papers,
correspondence, documents, and other evidence relevant to the investigation
of alleged violations of this article.  Authorizes the board, acting
through the attorney general, to file suit to enforce the subpoena in a
district court in Travis County or in the county in which a hearing
conducted by the board may be held, if a person fails to comply with a
subpoena issued under this subsection.  Requires the court, if it
determines that good cause exists for the issuance of the subpoena, to
order  compliance with the requirements of the subpoena.  Authorizes the
court to punish failure to obey the order of the court as contempt.  

SECTION 3.02.  Amends Section 6, Article 249e,V.T.C.S., by adding
Subsection (d), to authorize the board to accept payment of a fee by credit
card. Authorizes the board to charge a fee for processing the payment by
credit card.  Requires the board to set the processing fee in an amount
that is reasonably related to the expense incurred by the board in
processing the payment by credit card, not to exceed five percent of the
amount of the fee.  

SECTION 3.03.  Amends Sections 9(b), (c), and (d), Article 249e, V.T.C.S.,
to delete a provision that an applicant for admission to the registration
examination may be accompanied by evidence of professional education in
interior design and has experience in the field of interior design.  Makes
conforming and nonsubstantive changes. 

SECTION 3.04.  Amends Sections 14(b), (c), and (e), Article 249e,V.T.C.S.,
to provide that the board may determine a penalty fee for renewal of an
expired  registration certificate.  Authorizes a person to renew a
registration certificate by submitting to the board satisfactory proof of
compliance with continuing education requirements.  Deletes text tying the
additional fee for the renewing of expired registration certificate to the
amount of the legislation examination fee.   Makes conforming and
nonsubstantive changes. 

SECTION 3.05.  Amends Article 249e,V.T.C.S., by adding Section 17 as
follows: 

Sec. 17.  ADMINISTRATIVE PENALTY.  (a)  Authorizes the board to assess an
administrative penalty against a person on a ground provided by Section
15(a) (Revocation, Suspension, or Denial of Registration; Discipline of
Registrants) of this article.  

(b) Authorizes the executive director to issue a report stating the facts
on which the determination that a ground exists for a sanction is based,
recommending that an administrative penalty under this section be imposed
on the person charged, and recommending the amount of that proposed penalty
if, after investigation of the facts surrounding an allegation of a ground
for a sanction provided by Section 15(a) of this article the executive
director determines that a ground exists for a sanction.  Requires the
executive director to base the recommended amount of the proposed penalty
on the seriousness of the determined ground.  Requires the seriousness of
the ground to be determined by consideration of the factors prescribed by
Subsection (g) of this section. 
 
(c)  Requires  the executive director to give written notice of the report
to the person charged not later than the 14th day after the date on which
the report is issued.  Requires the notice to include a brief summary of
the charges, a statement of the amount of the penalty recommended, and a
statement of the right of the person charged to a hearing on the occurrence
of a ground for the penalty or on the amount of the penalty, or both the
occurrence of the ground and the amount of the penalty.  

(d)  Authorizes  the person charged to accept the determination of the
executive director not later than the 20th day after the date on which the
notice is received, including the recommended penalty, or make a request
for a hearing on the determination.  

(e)  Requires the board to issue an order approving the determination and
ordering the payment of the recommended penalty if the person charged
accepts the determination of the executive director.  

(f)  Requires  the board to set a hearing and give notice of the hearing if
the person charged requests a hearing or fails timely to respond to the
notice.  Provides that all proceedings under this subsection are subject to
Chapter 2001, Government Code. 
 
(g)  Requires the board to consider in determining the amount of the
penalty: 

(1)  the seriousness of the conduct that is the source of the ground,
including  consideration of the nature, circumstances, extent, and gravity
of any relevant acts or omissions, and of the hazard or potential hazard
created to the health or safety of the public; 
(2)  the economic damage to property caused by the conduct;
(3)  the charged person's history concerning previous grounds for sanction;
(4)  the amount necessary to deter future grounds for sanction;
(5)  efforts to correct the ground for sanction; and
(6)  any other matter justice may require. 

(h)  Requires the executive director to give notice of the board's order to
the person charged including certain specified information. 

(i)  Requires the person charged with the penalty to pay the penalty in
full unless the person has filed a petition for judicial review of the
order within the 30 days after the date on which the board's order becomes
final as provided by Section 2001.144 (Decisions; When Final), Government
Code.  

(j)  Requires  the person, within 30 days after the date on which the
board's order becomes final, if the person files a petition for judicial
review contesting the amount of the penalty or the occurrence of the ground
for sanction, or both, to: 

(1)  forward the amount of the penalty to the board for placement in an
escrow account; 
(2)  post with the board a supersedeas bond in a form approved by the board
for the amount of the penalty, the bond to be effective until all judicial
review of the order or decision is final; or 
(3)  file with the board an affidavit sworn by the person charged stating
that the person is financially unable to forward the amount of the penalty
or to post the bond.  

(k)  Authorizes the board  to forward the matter to the attorney general
for enforcement if the person charged fails to pay the penalty in full as
provided by Subsection (i) of this section or to timely comply with
Subsection (j) of this section. 
 
(l)  Requires the judicial review of the order or decision of the board
assessing the penalty to be under the substantial evidence rule and shall
be instituted by filing a petition with a district court in Travis County,
as provided by Subchapter G, Chapter 2001, Government Code. 
 
(m)  Requires the board to remit to the person charged the appropriate
amount plus accrued interest if the penalty has been paid or shall execute
a release of the bond if a supersedeas bond has been posted if a penalty is
reduced or is not assessed by the reviewing court.  Requires the accrued
interest on amounts remitted by the board under this subsection to be paid
at a rate equal to the rate charged on loans to depository institutions by
the New York Federal Reserve Bank and to be paid for the period beginning
on the date the penalty is paid to the board under Subsection (i) of this
section and ending on the date the fine is remitted.  

(n)  Requires a penalty collected under this section to be deposited in the
state treasury to the credit of the general revenue fund.  

ARTICLE 4.  TRANSITION; EFFECTIVE DATE; EMERGENCY

SECTION 4.01.  (a) Makes application of  Section 7(c), Article
249a,V.T.C.S., prospective. 

(b) Makes application of  Section 5(a), Article 249a,V.T.C.S., prospective
 
(c) Makes application of  Section 9(b)(1), Article 249a,V.T.C.S.,
prospective 

SECTION 4.02.  Effective date: September 1, 1999. 
 
SECTION 4.03.  Emergency clause.