HBA-ALS, ALS H.B. 2155 76(R)    BILL ANALYSIS


Office of House Bill AnalysisH.B. 2155
By: Yarbrough
Licensing & Administrative Procedures
3/30/1999
Introduced



BACKGROUND AND PURPOSE 

Under current law, different governmental entities have the authority to
issue licenses for plumbing, boiler operations, air conditioning and
refrigeration contracting, and backflow prevention.  As a result, a
contractor who wishes to perform this type of  work must obtain a necessary
license from various boards under the Department of Licensing and
Regulation, the State Board of Plumbing Examiners, and the Texas Natural
Resource Conservation Commission.  The purpose of this bill is to create a
more effective and efficient system of licensing and to promote uniform and
regular inspections in these professions. 

H.B. 2155 creates the Texas Board of Plumbing and Mechanical Work (board).
This bill sets forth rules relating to the designation of board members,
terms of board members, officers of the board, board meetings, board member
compensation, board membership restrictions, grounds for removal of a board
member, and restrictions on certain lobbying activities of board members.
This bill requires the board to enforce and administer enumerated laws and
to issue specified licenses and permits.  This bill sets forth
administrative penalties for violations under this Act to be assessed by
the board.  In addition, this bill abolishes certain existing regulatory
boards, commissions, and councils and transfers their functions to the
Texas Board of Plumbing and Mechanical Work. 

RULEMAKING AUTHORITY

It is the opinion of the Office of House Bill Analysis that rulemaking
authority is expressly delegated to the Texas Board of Plumbing and
Mechanical Work in SECTION 1 (Sections 17 and 23, Article 9150, V.T.C.S.),
of this bill.  

SECTION BY SECTION ANALYSIS
HBA-ALS H.B. 2155 76(R)    
SECTION 1.  Amends the V.T.C.S. by adding Title 132B, as follows:

TITLE 132B.  TEXAS BOARD OF PLUMBING AND MECHANICAL WORK

ARTICLE 9150.  TEXAS BOARD OF PLUMBING AND MECHANICAL WORK

Sec. 1.  DEFINITION.  Defines "board" as the Texas Board of Plumbing and
Mechanical Work.  

Sec. 2.  BOARD.  Sets forth the composition of the board.  Provides that
members of the board are appointed by the governor with the advice and
consent of the senate. Requires board appointments to be made without
regard to the race, color, disability, sex, religion, age, or national
origin of the appointees.  

Sec. 3. OFFICERS; MEETINGS; COMPENSATION. (a) Requires the governor to
designate a board member as the board's presiding officer to serve at the
will of the governor. Requires the board annually to select an assistant
presiding officer and a secretary-treasurer.  

(b)  Requires the board to hold at least two regular meetings each year.
Prohibits the board from holding more than four meetings each year unless
at least three-fifths of the board members submit a written request to the
presiding officer to call additional  meetings.  

(c)  Entitles a member of the board to a per diem as set by the General
Appropriations Act for each day the member engages in the business of the
board.  Prohibits a member from receiving compensation for travel expenses,
including expenses for meals and lodging, other than transportation
expenses as provided by the General Appropriations Act.  

Sec. 4.  TERMS.  Provides that the members of the board are appointed for
staggered six-year terms, with five members' terms expiring on February 1
of each odd-numbered year. Requires a member appointed to fill a vacancy to
hold office for the remainder of that term.  

Sec. 5.  PUBLIC MEMBERSHIP RESTRICTION.  Prohibits a person from being a
public member of the board if the person or the person's spouse: 

(1)  is registered, certified, or licensed by a regulatory agency in the
field of plumbing or mechanical work; 

(2)  is employed by or participates in the management of a business entity
or other organization regulated by or receiving money from the board; 

(3)  owns or controls, directly or indirectly, more than a 10 percent
interest in a business entity or other organization regulated by or
receiving money from the board; or 

(4)  uses or receives a substantial amount of tangible goods, services, or
money from the board other than compensation or reimbursement authorized by
law for board membership, attendance, or expenses.  

Sec. 6. CONFLICT OF INTEREST RESTRICTIONS. (a)  Defines "Texas trade
association."  
(b) Prohibits a person from being a member of the board and from being a
board employee in a "bona fide executive, administrative, or professional
capacity," as that phrase is used for purposes of establishing an exemption
to the overtime provisions of the federal Fair Labor Standards Act of 1938
(29 U.S.C. Section 201 et seq.) and its subsequent amendments, if the
person or the person's spouse meets certain characteristics. 
   
(c) Prohibits a person from being a member of the board or acting as the
general counsel to the board, if the person is required to register as a
lobbyist under Chapter 305, Government Code, because of the person's
activities for compensation on behalf of a profession related to the
operation of the board.  

Sec. 7.  EFFECT OF LOBBYING ACTIVITY.  Prohibits a person from serving as a
member of the board or acting as the general counsel to the board if the
person is required to register as a lobbyist under Chapter 305, Government
Code, because of the person's activities for compensation on behalf of a
profession related to the operation of the board.  

Sec. 8.  GROUNDS FOR REMOVAL FROM BOARD.  (a)  Specifies the grounds for
removal of a board member. 
   
(b)  Provides that the validity of a board's action is not affected by the
fact that it is taken when a ground for removal of a board member exists.  

(c)  Requires the executive director of the Texas Department of Licensing
and Regulation. 
(executive director) to notify the board's presiding officer that a
potential ground for removal exists and requires the presiding officer to
then notify the governor and the attorney general. Requires the executive
director, if the potential ground for removal involves the presiding
officer, to notify the next highest ranking officer of the board who is
required to then notify the governor and the attorney general. 

Sec. 9.  STAFF.  (a)  Requires the board to employ an executive director
and administrative  and clerical employees as necessary to carry out the
board's functions. Requires the board to develop and implement policies
that clearly separate the board's policymaking responsibilities and the
management responsibilities of the executive director and the staff of the
board.  

Sec. 10.  REGULATORY STATUTES ADMINISTERED.  Requires the board to
administer and enforce specified statutes relating to the regulation of
plumber licensing, boilers, air conditioning and refrigeration contractor
licenses, and irrigators. 
   
Sec. 11.  ADVISORY COMMITTEES.  Requires the board to appoint separate
advisory committees on plumbing, irrigation, boilers, air conditioning and
refrigeration, and backflow prevention.  Authorizes the board to appoint
additional advisory committees as determined to be necessary by a majority
of the board. Provides that a member of an advisory committee appointed
under this section serves a two-year term.  Provides that an advisory
committee member is not entitled to compensation but entitles an advisory
committee member to reimbursement for actual and necessary expenses,
including travel expenses, incurred in performing duties as a member of the
advisory committee.  

Sec. 12. SEPARATE LICENSES. Requires the board to issue separate licenses,
certificates, permits, or registrations for the programs under Section 10
of this article. Authorizes the board to issue more than one type of
license, certificate, permit, or registration to a person who is qualified
to hold each of the licenses, certificates, permits, or registrations
issued. Requires the board to adopt rules relating to the issuance of
multiple licenses, certificates, permits, or registrations to a person
under laws administered by the board.  

Sec. 13.  EXPENDITURES; AUDIT. Authorizes the board to authorize
disbursements from appropriated funds that are necessary to carry out this
article and the laws and programs listed in Section 10 of this article.
Provides that the financial transactions of the board are subject to audit
by the state auditor in accordance with Chapter 321, Government Code.  

Sec. 14. ANNUAL FINANCIAL REPORT.  Requires the board to annually file with
the governor and the presiding officer of each house of the legislature a
detailed written report accounting for all funds received and disbursed by
the board during the preceding fiscal year. Provides that the annual report
must be in the form and reported in the time provided under the General
Appropriations Act.  

Sec. 15. PERSONNEL POLICIES. Requires the executive director or the
executive director's designee to develop an intra-agency career ladder
program requiring intra-agency posting of all nonentry level positions
concurrently with any public posting. Requires the executive director or
the executive director's designee to develop a system of annual performance
evaluations based on measurable job tasks and on the system established
under this subsection.  

Sec. 16.  EQUAL EMPLOYMENT OPPORTUNITY POLICIES.  Requires the  executive
director or the executive director's designee to prepare and maintain a
written policy statement  implementing an equal employment opportunity
program to ensure that personnel decisions are made without regard to race,
color, disability, sex, religion, age, or national origin. Specifies the
information that is required to be contained in a policy statement.
Provides that a policy statement must be updated annually, be reviewed by
the state Commission on Human Rights for compliance with Subsection (b)(1),
and be filed with the governor's office.  

Sec. 17. PUBLIC INTEREST INFORMATION. (a) Requires the board to prepare
information of public interest describing the functions of the board and
the procedures by which complaints are filed with and resolved by the
board.  Requires the board to make the information available to the public
and appropriate state agencies.  

(b)  Requires the board, by rule, to establish methods to notify consumers
and service recipients  of the board's name, mailing address, and telephone
number for the purpose  of directing complaints to the board. Specifies the
means by which the board is authorized to provide notification. 
  
(c)  Requires the board to list, along with its regular telephone number,
the toll-free telephone number for complaints about a health professional,
if the toll-free number is established under other state law.  

Sec. 18.  PUBLIC PARTICIPATION IN BOARD HEARINGS.  Requires the board to
develop and implement policies that provide the public with a reasonable
opportunity to appear before the board and to speak on any issue under the
jurisdiction of the board.  

Sec. 19.  PROGRAM ACCESSIBILITY. Requires the board to prepare and maintain
a written plan describing how reasonable access to the board's programs can
be provided to a person who does not speak English. Requires the board to
comply with federal and state laws for program and facility accessibility.  

Sec. 20.  BOARD MEMBER TRAINING; STANDARDS OF CONDUCT INFORMATION.
Prohibits a person who is appointed to and qualifies for office as a member
of the board from voting, deliberating, or being counted as an attending
member at a board meeting, until the person completes a training program
under this section.  Specifies the type of information that the training
program must provide a person. Entitles a board member to reimbursement, as
provided by the General Appropriations Act, for the travel expenses
incurred in attending the training program, regardless of whether the
attendance at the program occurs before or after the person qualifies for
office. Requires the executive director or the executive director's
designee to provide to members of the board and to board employees, as
often as necessary, information regarding the requirements for office or
employment under this article.   
 
Sec. 21. SUNSET PROVISION.  Provides that the Texas Board of Plumbing and
Mechanical Work is subject to Chapter 325, Government Code (Texas Sunset
Act) and the board is abolished and this article expires September 1, 2011,
unless its existence is continued as provided by that chapter. 

Sec. 22. ADMINISTRATIVE PENALTIES. (a) Authorizes the board to assess an
administrative penalty against a person who violates a provision of this
article, a law administered by the board, or a rule or order adopted by the
board as provided by this section.  
(b) Prohibits a penalty from exceeding $1,000 for each violation.
Authorizes the consideration of each day a violation continues or occurs as
a separate violation for purposes of penalty assessment.  

(c)  Requires the board to consider specified factors in determining the
amount of the penalty.   
   
(d)  Authorizes the director, if after investigation of a possible
violation the director determines that a violation has occurred, to issue a
violation report stating the facts on which the conclusion is based,
recommending that an administrative penalty, and recommending the amount of
that proposed penalty.  Requires the executive director to base the amount
of the proposed penalty on the seriousness of the violation by considering
of the factors set forth in Subsection (c) of this section.  

(e)  Requires the executive director to give written notice of the report
to the person charged, no later than the 14th day after the date on which
the report is issued.  Requires that the notice 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 the violation or the amount of the penalty, or both the occurrence of
the violation and the amount of the penalty.  

(f)  Authorizes the person charged to accept the executive director's
determination, including the recommended penalty, or to make a written
request for a hearing on the  determination, no later than the 20th day
after the date on which notice is received 

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

(h)  Requires the executive director to set a hearing and give notice of
the hearing if the person charged requests hearing or fails to timely
respond to the notice.  Requires the hearing to be held by a hearing
examiner designated by the board.  Requires the hearing examiner to make
findings of fact and conclusions of law and promptly issue to the board a
proposal for decision as to the violation, including a recommendation as to
the amount of the proposed penalty. Authorizes the board, by order, based
on the findings of fact, conclusions of law, and recommendations of the
hearing examiner, to find that a violation has or has not occurred and to
assess a penalty for a violation. Provides that all proceedings under this
subsection are subject to Chapter 2001, Government Code. 

(i)  Requires the board to give notice of the board's order to the person
charged.  Specifies the information required to be contained in the notice. 
   
(j)  Requires the person charged with the penalty, within a specified time
period, to pay the penalty in full, or if the person files a petition for
judicial review contesting certain findings, to forward the amount to the
board for placement in an escrow account or in lieu of payment into escrow,
post with the board a supersedeas bond in a form approved by the board for
the amount of the penalty to be effective until all judicial review of the
order or decision is final.   

(k)  Authorizes a person charged who is financially unable to either
forward the amount of the penalty for placement in an escrow account or
post a supersedeas bond, to satisfy the  file with the board an sworn
affidavit stating that the person is financially unable to either forward
the amount of the penalty or post a bond.  

(l)  Authorizes the board, if the person charged fails to pay the penalty
in full, or forward the money, post the bond, or file the affidavit as
provided by Subsection (j) or (k) of this section, to forward the matter to
the attorney general for enforcement.  

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

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

(o)  Requires a penalty collected under this section to be deposited in the
general revenue fund.  
 
Sec. 23.  EFFECT OF FEDERAL REGULATIONS.  Requires the board to adopt rules
for a law or program regulated by the board in order to comply with any
federal regulation that imposes standards or requirements on that law or
program.  

SECTION 2.  Amends the Plumbing License Law, Article 6243-101, V.T.C.S., by
adding Section 1A , as follows: 

Sec. 1A.  FUNCTIONS TRANSFERRED; BOARD ABOLISHED.  Provides that this Act
is administered by the Texas Board of Plumbing and Mechanical Work in
accordance with Article 9150, V.T.C..S..  Provides that to the extent of a
conflict between this Act and Article 9150, V.T.C.S., that article
prevails.  Provides that any reference in this Act to the Texas State Board
of Plumbing Examiners means the Texas Board of Plumbing and Mechanical
Work.  Abolishes the Texas State Board of Plumbing Examiners and provides
that the functions of that board are exercised by the Texas Board of
Plumbing and Mechanical Work. 
 
SECTION 3.  Amends the Air Conditioning and Refrigeration Contractor
License Law, Article 8861, V.T.C.S., by adding Section 1A, as follows: 

Sec. 1A. FUNCTIONS TRANSFERRED; ADVISORY BOARD ABOLISHED. (a)  Provides
that this Act is administered by the Texas Board of Plumbing and Mechanical
Work in accordance with Article 9150, V.T.C.S..  Provides that to the
extent of a conflict between this Act and Article 9150, V.T.C.S., that
article prevails.  

(b)  Provides that any reference in this Act to the Texas Department of
Licensing and Regulation, the commissioner of licensing and regulation, or
the Air Conditioning and Refrigeration Contractors Advisory Board means the
Texas Board of Plumbing and Mechanical Work.  

(c)  Abolishes the Air Conditioning and Refrigeration Contractors Advisory
Board and provides that the functions of that board and the functions,
under this Act, of the Texas Department of Licensing and Regulation and the
commissioner of licensing and regulation are exercised by the Texas Board
of Plumbing and Mechanical Work.  

SECTION 4.  Amends Chapter 372, Health and Safety Code, by adding Section
372.0015, as follows: 

Sec. 372.0015.  FUNCTIONS TRANSFERRED.  Provides that this chapter is
administered by the Texas Board of Plumbing and Mechanical Work in
accordance with Article 9150, V.T.C.S..  Provides that to the extent of a
conflict between this chapter and Article 9150, V.T.C.S., that article
prevails.  Provides that any reference in this chapter to the Texas Natural
Resource Conservation Commission means the Texas Board of Plumbing and
Mechanical Work. 
 
SECTION 5.  Amends Subchapter A, Chapter 755, Health and Safety Code, by
adding Section 755.002, as follows: 

Sec. 755.002.  FUNCTIONS TRANSFERRED; BOARD ABOLISHED.  (a)  Provides that
this chapter is administered by the Texas Board of Plumbing and Mechanical
Work in accordance with Article 9150, V.T.C.S..  Provides that to the
extent of a conflict between this chapter and Article 9150, V.T.C.S, that
article prevails.  

(b) Provides that any reference in this chapter to the Texas Department of
Licensing and Regulation, the commissioner of licensing and regulation, or
the Board of Boiler Rules means the Texas Board of Plumbing and Mechanical
Work.  

(c)  Abolishes the Board of Boiler Rules and the functions of that board
and provides that the functions, under this chapter, of the Texas
Department of Licensing and Regulation and the commissioner of licensing
and regulation are exercised by the Texas Board of Plumbing and Mechanical
Work.  

SECTION 6.  Amends Chapter 34, Water Code, by adding Section 34.0015, as
follows: 

Sec. 34.0015.  FUNCTIONS TRANSFERRED; COUNCIL ABOLISHED.  (a)  Provides
that this chapter is administered by the Texas Board of Plumbing and
Mechanical Work in accordance with Article 9150, V.T.C.S..  Provides that
to the extent of a conflict between this chapter and Article 9150,
V.T.C.S., that article prevails.  

 (b) Provides that any reference in this chapter to the Texas Natural
Resource Conservation Commission or the Texas irrigators advisory council
means the Texas Board of Plumbing and Mechanical Work.  

(c) Abolishes the Texas irrigators advisory council and provides that the
functions of that board and the functions, under this chapter, of the Texas
Natural Resource Conservation Commission are exercised by the Texas Board
of Plumbing and Mechanical Work.  

SECTION 7.  (a)  Requires the governor, as soon as possible after the
effective date of this Act, to appoint the initial members of the Texas
Board of Plumbing and Mechanical Work in accordance with Article 9150,
V.T.C.S., as added by this Act. 

(b)  Provides that a person who is serving on the day immediately before
the effective date of this Act as a member of the governing body of an
agency abolished by this Act is not eligible for appointment to the Texas
Board of Plumbing and Mechanical Work.  

(c)   Requires  the governor, in making the initial appointments to the
Texas Board of Plumbing and Mechanical Work, to designate: 
 
(1)  one master plumber member, one licensed backflow prevention specialist
member, one plumbing inspector member, one irrigator member, and one public
member to serve terms expiring February 1, 2001; 

(2)  one journeyman plumber member, one industrial boiler plant operator or
building engineer member, one air conditioning and refrigeration contractor
member, one engineer member, and one public member to serve terms expiring
February 1, 2003; and 

(3)  one plumbing contractor member, one boiler installer or servicer
member, one air conditioning and refrigeration license holder member, and
two public members to serve terms expiring February 1, 2005.  

(d)  Prohibits the Texas Board of Plumbing and Mechanical Work  from taking
any action until and is not created until the day after the date the last
appointee to the initial board takes office.  Provides that on the creation
date, the board assumes its functions and: 

(1)  the Air Conditioning and Refrigeration Contractors Advisory Board,
Texas State Board of Plumbing Examiners, Board of Boiler Rules, and Texas
irrigators advisory council are abolished; 

(2)  the obligations, rights, contracts, records and other property, and
personnel of, and unspent money appropriated to or for, the abolished
boards and council or the governing body for the laws or programs
transferred to the new board under this Act are transferred to the Texas
Board of Plumbing and Mechanical Work; 

(3)  the rules of the abolished boards and council or the governing body
for the laws or programs transferred to the new board under this Act are
continued in effect as rules of the Texas Board of Plumbing and Mechanical
Work until superseded by rule of the new board; 

(4)  the licenses, certificates, permits, or registrations in effect that
were issued by the abolished boards or council or the governing body for
the laws or programs transferred to the new board under this Act are
continued in effect as licenses, certificates, permits, or registrations of
the Texas Board of Plumbing and Mechanical Work; 

(5)  a complaint or investigation pending before the abolished boards or
council or the governing body for the laws or programs transferred to the
new board under this Act is transferred without change in status to the
Texas Board of Plumbing and Mechanical Work; 
 
(6)  a contested case pending before the abolished boards and council or
the governing body for the laws or programs transferred to the new board
under this Act is transferred to the Texas Board of Plumbing and Mechanical
Work and actions taken in the proceeding are treated as if taken by the
Texas Board of Plumbing and Mechanical Work; and 

(7)  any reference in a law to the abolished boards or council means the
Texas Board of Plumbing and Mechanical Work.  

(e)  Provides that  the boards and council continue in existence and
requires them to administer their functions under the law that governed the
boards and council before the effective date of this Act, and provides that
the prior law is continued in effect for that purpose, regardless of the
changes in law made by this Act, until the date that the Air Conditioning
and Refrigeration Contractors Advisory Board, Texas State Board of Plumbing
Examiners, Board of Boiler Rules, and Texas irrigators advisory council are
abolished as provided by this section. 

(f)  Requires the Texas Board of Plumbing and Mechanical Work to adopt
rules under this Act no later than December 1, 1999.  

SECTION 8.  Repealer: Sections 4, 4a, 5A, 6, and 7, Article 6243-101,
V.T.C.S. (The Plumbing License Law); Subchapter B, Chapter 755, Health and
Safety Code (Board of Boiler Rules); Section 3A, Article 8861, V.T.C.S.
(Air Conditioning and Refrigeration Contractor License Law); and Section
34.003, Water Code (Irrigators Advisory Council)..  

SECTION 9.Effective date: September 1, 1999. 

SECTION 10.Emergency clause.